Posts Tagged ‘Employer’

An on-site audit by the Labor Department’s Office of Federal Contract Compliance Programs (“OFCCP”) can be an intimidating process for a company’s hiring managers and supervisors who undergo interviews with OFCCP compliance officers, but nerves can be quelled with preparation tactics.  Below are a few tips on how to prepare your hiring managers and supervisors:

Begin briefing hiring managers/supervisors at least a week before the scheduled interviews in order to give managers/supervisors time to review relevant material (i.e., personnel records/job postings and descriptions/resumes, etc.).

Managers/supervisors should thoroughly understand the nature of the review and the OFCCP compliance standards that the company is obligated to meet.

Managers/supervisors should be able to explain employment decisions and potential discrimination/disparate impact concerns.

Ensure that the managers/supervisors can explain the “necessity for a job’s minimum qualifications.”  In other words, if a company is requiring all entry-level administrative assistants to hold a four-year college degree, the manager/supervisor should be prepared to explain what aspect of the job requires a four-year degree as opposed to, for example, a two-year associate’s degree or a high school degree.

The goal is for the managers/supervisors to convey the legitimate non-discriminatory reasons for the company’s actions.

Convey the company’s position with respect to signing statements.

At the end of interviews, witnesses are often being asked to sign a statement, prepared by an OFCCP compliance officer, recapping the witness’s statements.

Managers/supervisors should know that they may face pressure to sign such statements.

Companies have the right to have a representative attend interviews of management witnesses and to defend such witnesses if they refuse to sign the OFCCP’s interview notes.  Managers/supervisors should be told if the company intends to send a representative to attend the interview and to possibly defend them.

If a witness does not want to sign an interview statement, the representative (usually an attorney or designated human resources representative) should point out as many differences as possible between the representative’s notes and the OFCCP’s interview statement.

Tell managers/supervisors not to sign any written statement without reviewing it for total accuracy with in-house counsel or the designated human resources representative.

If the company’s position is to never sign anything, it should convey this position to the witness in advance of the interview.  Employers should explain to witnesses that nothing in the regulations requires the company or its witnesses to sign off on the OFCCP’s interview statement so that the witness does not feel as though he or she is violating the law by refusing to sign.

If the company’s policy is to sign accurate interview statements, as opposed to refusing to sign any statements, advise managers/supervisors to take the OFCCP interview statement to another room and review it for accuracy.  This may mean checking the statement against company records. The witness and the company representative should take as much time as needed to review the statement so that it is correct and complete as to matters of significance.

Train managers/supervisors on how to deal with inaccuracies in the statement.  Depending on company policy, the managers/supervisors should either be told to make corrections to the statement and return the document to the OFCCP compliance officer unsigned, or to make corrections and then sign the statement.

Under no circumstances should a witness sign something that is not correct or complete because the statement can be subpoenaed.

The attorneys at Harmon & Davies, P.C. are here to assist you through the OFCCP audit process.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Affirmative Action Plans and OFCCP Compliance | No Comments »

A National Labor Relations Board (“NLRB”) administrative law judge (commonly referred to as an ALJ) recently directed an employer to remove a provision from its social media policy that prohibited employees from using social media during “company time,” on the basis that such a prohibition violated employees’ rights under the National Labor Relations Act (“NLRA”).

In the EchoStar Technologies, LLC case, an employee challenged two provisions in the company’s updated employee handbook that related to the company’s social media policy.  Specifically, the employee challenged the prohibition against making disparaging or defamatory comments about the company and the prohibition against employees using social media with company resources during company time.

The employee argued that such prohibitions violated Section 8(a)(1) of the NLRA, which bans employer interference with an employee’s Section 7 rights.  Section 7 of the NLRA protects employees’ rights to engage in unionization activities and the right of nonunion employees to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.  The NLRB general counsel’s office later filed a complaint in the case.

In ruling that both challenged provisions should be removed from the company’s employee handbook, the ALJ noted that this case centered around whether a reasonable employee would view the company’s social media policy as chilling unionization activities or other protected concerted activities.  The test for making such a determination is whether an employee’s Section 7 rights “suffered a reduction or inhibition” as a result of the policy.  This test is applied with the reasonable person standard, meaning the determination considers how a reasonable person would react to the prohibition, not whether the employees involved actually felt threatened.

The ALJ struck down the ruling banning “disparaging comments” on social media sites on the grounds that it was similar to another case where the NLRB did not allow a rule prohibiting “derogatory” comments about the employer.  In Southern Maryland Hospital Center, 293 N.L.R.B. 1209, 132 LRRM 1031 (1989), the NLRB explained that such a ban is problematic because “an assertion that an employer overworks or underpays its employees, which would constitute the most elementary kind of union propaganda, could fairly be regarded as ‘derogatory’ toward the employer.”  Accordingly, in EchoStar, the ALJ held that the prohibition against disparaging comments intruded on employees’ Section 7 activities and ordered the prohibition removed from the employee handbook.

Unfortunately, the ruling in EchoStar did not shed much light on why the ALJ struck down the employer’s prohibition against the use of social media on company time.  Nevertheless, the ALJ made it clear that such a ban also needed to be removed from the employer’s handbook.  We can only surmise that the ALJ agreed with the general counsel’s argument that essentially said the ban was too broad because it could be interpreted as prohibiting employees from participating in social media activities through their own devices and during their breaks, lunch, and before and after work.  Notably, the general counsel’s office pointed out that the phase “company time” is ambiguous and had already been found to be problematic in other cases because it does not let employees know that protected activities may occur on breaks, during lunch and before or after work.  Although the employer argued that it had a huge problem with employees using social media for personal matters during work hours its argument was to no avail.

Lesson for Employers:  Social media policies raise a host of issues.  Because overly broad restrictions on employees’ social media use might be deemed to violate the NLRA, employers should seek the assistance of an attorney when crafting their social media policy.  The attorneys at Harmon & Davies, P.C. are here to assist you with all such needs.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Labor & Employment, NLRB, Social Media | No Comments »

Employers, Check the Language of Your Anti-Harassment Policies

In a recent Equal Employment Opportunity Commission (“EEOC”) suit brought against a construction contractor, the EEOC established that a construction site where three black employees worked constituted an objectively hostile work environment under Title VII of the 1964 Civil Rights Act (“Title VII”) based upon evidence that: (1)  the employer was aware that a white supervisor regularly used racial slurs at the construction site; (2) the portable toilets at the site were covered with racist graffiti; and (3) the human resources manager also used a racial slur during a safety meeting.

In EEOC v. Holmes & Holmes Indus. Inc., a federal court found that no reasonable jury could conclude that a reasonable African-American would not be offended, even in a blue collar setting, by the type of conduct at issue in the case.  Nonetheless, even though the court found the at-issue conduct sufficient enough to establish an objectively hostile work environment, the court held that the case still has to be submitted to a jury to determine if the three black employees found the workplace subjectively, or in other words, personally offensive.  Indeed, in order to recover, the employees will have to prove that they personally viewed the conduct as offensive.

It appears likely that a jury will find that the employees found the conduct subjectively offensive because a significant amount of evidence shows that the employees were offended.  The employees complained to management about the alleged offensive speech and on at least one occasion, one of the employees stormed out of the room after such language was used.  However, there is a possibility that a jury might find otherwise because there is some evidence to suggest that the employees did not seem bothered by the conduct.  For example, two of the employees socialized with the allegedly offending supervisor outside of work, which evidence the employer might use to show that the employees were not subjectively offended by the supervisor’s conduct.

However, when the employer tried to use such evidence to argue that the employees could not prove an objectively hostile work environment because the employees were “friends” with the offending supervisor, the court rejected the argument stating that the test for determining whether an environment is objectively hostile is whether a reasonable person would have found the environment objectively hostile.  The court noted that there is no case law supporting the position that a supervisor’s belief that he was friends with his subordinates allows him or the employer to avoid liability for creating a hostile environment.

In finding that the employer created an objectively hostile work environment, the court pointed out flaws in the company’s anti-harassment policy and the lack of evidence showing that the employer had appropriately disciplined the offending supervisor after receiving complaints from the employees.  Although the company had a written anti-harassment policy, it did not specifically mention racial harassment or include an alternative avenue for complaint if a supervisor is the alleged harasser.  Additionally, the court noted that the company did not provide employee training on its anti-harassment policy during the relevant time period.

The court also noted that if a jury finds a racially hostile work environment, the employer will be vicariously liable for its supervisor’s actions because it cannot prove the affirmative defense set out in Faragher v. BocaRaton and Burlington Industries Inc. v. Ellerth.  Under those cases, an employer proves the Faragher/Ellerth defense to avoid vicarious liability under Title VII if the employer can show that it: (1) exercised reasonable care to prevent and correct promptly any racially harassing behavior; and (2) the employees unreasonably failed to take advantage of any preventative or corrective opportunities.  In the Holmes case, the court found that because the employees repeatedly complained to the employer’s management about the alleged harassment, the employer could not meet the second element of the Faragher/Ellerth defense.  Moreover, even if the employer could meet the second element, the court said that there was no way that the employer could meet the first element because it is well established that the mere institution of a policy alone is not sufficient to satisfy the first prong of the affirmative defense.  Because the employers’ policy in Holmes did not mention race or racial harassment and did not provide an avenue to bypass a harassing supervisor when making complaints, the court found the employer’s policy to be unreasonable as a matter of law on the grounds that it directed victims to report discrimination to their harassing supervisor and provided no alternative means to bypass the supervisor.

As a side, the Court also held that the employee’s use of allegedly offensive words outside of work, particularly in the form of rap music that two of the employees sang, is irrelevant and inadmissible at jury trial.

Lessons for Employers:  Employers should double check their anti-harassment policy to ensure that their policy makes reference to race or racial harassment and that the policy has an avenue to bypass a harassing supervisor when making complaints.  Employers who substantiate harassment complaints need to take disciplinary action and keep written documentation of what discipline was taken.  Employers who are aware of employees using racially offensive language at work should not turn a blind eye.   Employers must show that they are committed to enforcing their anti-harassment policies.  In addition to disciplining employees who violate anti-harassment policies, employers can show their commitment to their policies by routinely having employees participate in anti-harassment training.

The attorneys at Harmon & Davies, P.C. are here to assist employers with drafting and enforcing their anti-harassment policies and we also offer anti-harassment training for your employees.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Anti-Harassment Policy, Construction, Labor & Employment | No Comments »

Employee’s Failure to Report Overtime Thwarts Her FLSA Claim

In a split decision, the Sixth Circuit recently held that a nurse’s failure to follow her employer’s procedures for reporting time spent working during an unpaid meal break was fatal to her Fair Labor Standards Act (“FLSA”) claim.  In White v. Baptist Mem’l Health Care Corp., the majority of the court found that the trial court’s dismissal of the employee’s case before trial was proper because her employer could not have known or had reason to know that the employee was not receiving pay for missed meal breaks as the employee was not using the employer’s exception log to record the extra time that she worked.  Additionally, the employee offered no evidence that the employer discouraged employees from reporting meal break work or that it was otherwise notified that employees were not reporting such work.

By way of background, before being hired, the nurse signed a document stating that she understood that unpaid meal breaks would be deducted from her paycheck, but that any time spent working during meal breaks had to be noted in an exception log in order for the nurse to be paid for that time.  The nurse acknowledged that in instances when she and her entire nursing unit reported working during a meal break, the hospital compensated her for that time.  However, the nurse also alleged that there were instances in which the hospital did not pay her when she individually worked through a meal break and reported it on the log.  Although, the nurse notified supervisors about missed meal breaks, she never complained to supervisors that she was being unpaid when she worked through her meal breaks–a distinction the Sixth Circuit found quite important.  Eventually the employee stopped using the exception log because she claimed that reporting missed meal breaks just seemed like an “uphill battle.”

Given these facts and circumstances, the Sixth Circuit, relying on case law from the Eighth, Fifth, and Ninth circuits, said that an employer that establishes a “reasonable process” allowing employees to report unpaid work time will not be liable for nonpayment where an employee does not follow that process because when an employee fails to follow the reasonable time reporting procedure, she prevents the employer from knowing its obligations to compensate the employee and thwarts the employer’s ability to comply with the FLSA.  Thus, the court found that there was no way for the hospital to have known that the employee was not being compensated for missing her meal breaks.  As such, the court held that the employee’s claim failed.

In so holding, the Sixth Circuit distinguished this case from cases where employers prevented employees from reporting overtime or where the employers were otherwise notified of the employee’s unreported work.  In this case, however, the employee presented no evidence that the employer discouraged her or other employees from reporting on exception logs the time they spent working during meal breaks, or that the hospital was otherwise notified of the unreported work.

Interestingly, the dissenting opinion notes that an employer violates the FLSA if it had actual or constructive knowledge that an employee worked without pay regardless of whether the employee has properly reported the time.  The judge writing the dissenting opinion felt that the employee had raised a triable issue regarding whether the employer had actual knowledge because, among other things, the supervisors knew the employee was working through lunch and complaining about it, and should have responded to the employee’s complaints by asking her to make sure she signed the exception log.  As such, the judge authoring the dissenting opinion felt that a reasonable jury could view such acts as supervisor pressure for the nurse not to report her missed breaks, which would point to constructive knowledge of unpaid time.

Lessons for Employers:  There are several things that employers should take away from this case.  First, employers should establish a reasonable process for employees to report unpaid work time.  Second, even though the court ruled in favor of the employer, it was a split decision with the dissent indicating that the employer should have responded to the employee’s complaints about working through her meal breaks by asking the employee to make sure that she followed the reporting procedure.  Accordingly, to be on the safe side, employers should train their supervisors to provide such a response in the event that there are complaints about working through breaks or working overtime and, to be be on the extra safe side, to record such exchanges in writing.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in FLSA, Labor & Employment | No Comments »

In late October 2012, a New Jersey appeals court issued a ruling that gives employers reason to carefully check their drug and alcohol policies.  In A.D.P. v. ExxonMobil Research & Eng’g Co. an employee identified herself as an alcoholic seeking rehabilitation and pursuant to company policy, the company entered into an after-care contract with the employee that required her to submit to random drug testing for a two year period during which time she had to abstain from alcohol use or else she could be terminated.  After failing one of 10 random alcohol tests, ExxonMobil terminated the employee and she sued the company under the New Jersey Law Against Discrimination (“NJLAD”) alleging that the after-care contract and its terms, imposed upon her solely because she identified herself as an alcoholic, along with ExxonMobil’s termination of her for violating the after-care contract, constituted disparate treatment discrimination based on disability.

The trial court dismissed the employee’s claims before her case went to trial, but on appeal the appellate Court found the dismissal of the employee’s claims to be improper on the grounds that the after-care contract and the testing requirements contained therein constituted a policy that was imposed only against employees who were identified as alcoholics.  The court found that although the use of alcohol alone would not be grounds for terminating the employment of other employees, alcoholics like the employee could be fired for one “slip” even if their job performance was not affected.  Thus, the Court held that the policy was facially discriminatory and direct evidence of bias.

  1. Where the Court Found Fault with ExxonMobil’s Drug and Alcohol Policy

In the ExxonMobil case, the company’s written drug and alcohol policy mandatorily and uniformly required that any employee identified as an alcoholic agree to submit to random alcohol testing for two years after being so identified.  The New Jersey appellate court found that ExxonMobil’s reliance upon such blanket requirements only confirmed the facially discriminatory nature of the Policy and undermined the defenses that the employer tried to present.  Indeed, the alcohol testing imposed on the at-issue employee was never initiated as a result of performance related issues.  Rather, the testing requirement was imposed only after the employee voluntarily disclosed to a company nurse that she was an alcoholic and was going to check herself into a rehabilitation program.  This disclosure resulted in the blanket imposition of ExxonMobil’s after-care contract upon the employee, the terms of which included submitting to random drug tests for a period of two years.

The purpose of ExxonMobil’s drug and alcohol policy was to promote the company’s commitment to a safe, healthy, and productive workplace.  Under the policy, being unfit for work because of drug or alcohol use was grounds for termination.  However, the policy also provided that employees with alcohol or drug dependency problems undergoing rehabilitation would not be fired, but would be required to sign an after-care contract as a condition of returning to work.  The after-care contract required a returning employee to maintain total abstinence from drugs or alcohol, submit to random drug testing for two years, and consent to monitoring for an additional three years.  According to the after-care contract, a positive test was grounds for discipline including termination.

In the ExxonMobil case, the employee was terminated after passing nine random breathalyzer tests when her tenth breathalyzer test showed a blood alcohol level of .047 and .043 (under the state legal limit of .08 for driving under the influence) even though there was no evidence that she consumed alcohol at work or that she violated a company policy by being unfit for work because of alcohol use.  There was also zero evidence that she had been told that her job performance had become unacceptable.

Rather, the evidence showed that the imposition of the after-care contract was unrelated to the employee’s job performance.  In fact, a representative of the company went so far as to say that the employee would have been terminated for failing the breathalizer even if she had been performing at the top one-percent of her group.

Under these circumstances, the New Jersey Court found that the employee’s claims should not have been dismissed before trial because the evidence (viewed in the light most favorable to the employee) showed that the basis for ExxonMobil’s testing requirement and its termination of the employee was her voluntary disclosure that she was an alcoholic, not her subpar work performance. Thus, the court found the imposition of the testing requirements and the decision to terminate the employee for failing a breathalyzer test amounted to direct proof of discrimination.

  1. Why ExxonMobil’s Defenses Failed

Interestingly, ExxonMobil might have defeated the employee’s claims despite the direct proof of discrimination if ExxonMobil had been able to show that it would have terminated the employee even in the absence of her failed breathalyzer test.  Indeed, New Jersey law provides two statutory justifications for employers in such situations, but ExxonMobil did not attempt to avail itself of either justification, most likely because these statutory justifications are based upon performance issues, and there was absolutely no evidence that the employee had performance issues.

Instead, the company tried to justify its policy on the grounds of “reasonableness.”  However, the so-called reasonableness test, which the employer argued was based on business necessity and safety failed because: (1) the business necessity defense only applies in adverse impact discrimination cases and this case involved disparate treatment bias; and (2) although the safety defense applied, ExxonMobil could not establish the defense because the safety defense requires an employer to make an individualized assessment of the safety risk, and there was no evidence in the record that an individualized assessment of any kind was conducted in this case.

  1. The Takeaway

If you are an employer and your drug and alcohol policy could result in an employee being fired based solely upon the employee being identified as an alcoholic or drug addict, and not as a result of performance issues or any individualized safety assessment, your policy might be found to be facially biased and direct proof of disability discrimination.  If this is the case, revisions to your policy are encouraged.

The attorneys at Harmon & Davies, P.C. are here to assist employers with all employment law related needs, including assisting employers with drafting and revising drug and alcohol policies.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.


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Posted in Drug and Alcohol Testing and Policies, Labor & Employment | No Comments »