Monthly Archives: March 2012

March 30, 2012

EEOC Issues Final Rule Governing Age Bias and Reasonable Factors Other Than Age

By Scott E. Randolph

The EEOC issued a final rule yesterday governing disparate impact claims arising under the Age Discrimination in Employment Act of 1967 (ADEA).  The EEOC’s final rule is available here.  The EEOC’s final age bias rule addresses the “reasonable factors other than age” or RFOA under the statute.  According to the EEOC, the rule “makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA [reasonable factors other than age], and not business necessity[.]”  The new final rule applies to practices that while neutral on their face might harm older workers. 

The EEOC’s question and answer document regarding the rule is located here.  The EEOC also provided several examples in the question and answer document regarding how it contemplates the rule being applied, including the following:

Example 1:

If a police department decided to require applicants for patrol positions to pass a physical fitness test to be sure that the officers were physically able to pursue and apprehend suspects, it should know that such a test might exclude older workers more than younger ones.  Nevertheless, the department’s actions would likely be based on an RFOA if it reasonably believed that the test measured the speed and strength appropriate to the job, and if it did not know, or should not have known, of steps that it could have taken to reduce harm to older workers without unduly burdening the department.

The final rule is expected to make summary judgment more difficult to obtain for employers, because the court will be required to assess factors relevant to the reasonableness of the employer’s position.  This is true even though the person challenging the practice bears the burden of isolating the alleged discriminatory practice. 

The EEOC’s final rule includes a list of considerations relevant to the issue of whether the practice is based on a reasonable factor other than age including:

(i) The extent to which the factor is related to the employer's stated business purpose;

(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;

(iii) The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;

(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and

(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

While the considerations listed in the final rule are not mandatory and will not apply in all circumstances, courts will be forced to address the circumstances surrounding the particular employment practice and employer.  For example, while training and other job related surveys are not required, courts and the EEOC will be considering their potential use when assessing a particular employment practice.  We’ll continue to monitor developments in this area.

March 29, 2012

Discharge Checklist

By Mark Wiletsky    

Here's a great checklist from Nicole Snyder in our Boise office for things to think about before discharging an employee; you can also get to the checklist from this link: http://www.idahoemploymentlawblog.com/2012/03/a-checklist-to-use-before-discharging-an-employee.html.  It's a great list of items to consider before you discharge an employee, regardless of whether your employees are in Idaho or another state.  As with any checklist, this is not meant to be all-encompassing; you may be in state with special rules, or in an industry subject to regulations that impact a discharge decision.  Still, this is a great resource. 

March 28, 2012

A Checklist to Use before Discharging an Employee

By Nicole C. Snyder

          Clients often ask us to help assess the legal risk and proper procedures for discharging employees.  The following list is not exhaustive, but it provides a helpful starting point for considering almost any termination of employment:

 1.    Do I fully understand the facts surrounding this employee?  Have I done a full investigation of why this employee is being selected for termination?

2.    Have I assembled this person’s records?  Is the personnel file in order?

3.    Have I read any company policies/employee handbook provisions that are relevant to the situation to be sure we are complying with them?

4.    Is my decision to discharge this person (or the supervisor’s decision) based on facts, not suspicion or emotion?

5.    Is the employee subject to a collective bargaining agreement that must be followed?  If so, are we following it?

6.    Has the employee received at least one warning of possible dismissal or at least some prior notice of significant performance issues?    Do we have documentation of these warnings or instances?  Has the employee had some reasonable time and opportunity to correct the performance problems?

7.    Does this employee have an employment agreement or any other kind of agreement concerning the term of his or her employment? If so, is the employee an at-will employee, or can he or she only be terminated in certain situations and pursuant to procedures set forth in the agreement?

8.    Has this employee signed a noncompete or confidentiality agreement?  If so, have I consulted with legal counsel to determine whether the noncompete agreement is enforceable and determined what type of communication to use during the termination meeting concerning these post-employment restrictions?

9.    Have I checked the company policies/employee handbook to be sure that I am complying with any warning systems?

10. Does this employee have any kind of equity interest in the company, such as stock, membership units, or options?  If so, have I worked with the corporate department or legal counsel to be sure we are addressing those interests correctly? 

11. Have personal difficulties or special circumstances been taken into account, such as family or medical conditions?

12. Is dismissal in this case consistent with past practices?

13. Would the company be able to justify the decision if he/she claims discrimination or unjust dismissal?

14. Has this decision been discussed and approved by higher management or any other person in the company that needs to approve it?

15. Have I scheduled the dismissal/exit interview to minimize the employee’s personal contact with other employees before he/she leaves the premises?

16. Have I arranged for two people to be present at the dismissal/exit interview?

17. Have I arranged for the final paycheck and am I prepared to explain the amount?

18. Do I know what group insurance the employee has and am I able to explain what will happen to it after dismissal?

19. Have I decided what restricted statements will be made to other employees concerning this person’s discharge?

20. If the employee is being offered any form of severance pay, have we considered a severance agreement so we can obtain a release of claims from this employee?

21. Would a jury conclude that our treatment of this employee was fair?

22. Are there any special circumstances that should be fully evaluated with legal counsel prior to the termination?  For example, does this termination fall within the legal “caution zone”?

  • Employee has a medical condition or has recently been on any type of leave
  • Employee is in a suspect class protected by discrimination laws (for example, the employee is female or over 40 or disabled or a member of a certain religious group or a racial minority)
  • Employee has complained recently about being harassed or working in a hostile environment
  • Employee has brought important problems to the company’s attention recently (for example, has notified management that the company is potentially doing something illegal)
  • Similar employees have not been discharged for the same behavior this employee is being discharged for
  • More than one employee is being discharged at or about the same time

March 27, 2012

Furor Over Facebook Continues

By Mark Wiletsky    

Following up on my post last week, the flap over employers asking applicants to turn over their passwords to social media accounts, such as Facebook, rages on.  Two senators–Sens. Richard Blumenthal (D-Conn.) and Charles Schumer (D-N.Y.)–on March 25 asked the Department of Justice and the EEOC to investigate this practice (http://blumenthal.senate.gov/newsroom/press/release/blumenthal-schumer-employer-demands-for-facebook-and-email-passwords-as-precondition-for-job-interviews-may-be-a-violation-of-federal-law-senators-ask-feds-to-investigate).  Facebook joined the fray by warning employers about this practice, and of course the ACLU has raised concerns as well (http://www.cnn.com/2012/03/23/tech/social-media/facebook-employers/index.html?hpt=hp_t3).  Is this issue being overblown?  Other than media reports about a couple of public entities, it is unclear how many employers are demanding applicants turn over passwords to social media accounts as a condition of employment (or consideration for employment).  Still, the heightened media attention is a good reminder for employers to review their hiring practices and their social media policies.  If you have not yet read the NLRB's January 25, 2012 Operations Management Memo (http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report), I recommend doing so.  Even though I disagree with certain aspects of the Memo, it provides some good examples of things to avoid in both social media policies and discipline/termination situations involving social media–for Union and non-Union work environments.   

March 23, 2012

Hiring and Social Media: Beware

By Mark Wiletsky

Should you require prospective employees to provide you with access to their Facebook page and other social media accounts, as a condition of being considered for the job?  Some public agencies apparently are doing so.  But Richard Blumenthal, a Democratic senator from Connecticut, is writing a bill to prohibit the practice.  (Not surprisingly, you can find more information about his proposed bill by visiting his Facebook page: http://www.facebook.com/dickblumenthal).  Relying on social media for hiring decisions can be risky, but it happens.  People Google a candidate’s name, check LinkedIn profiles, browse a Facebook page, or surf the web to see if they can learn some information about the candidate.  It’s so easy to do, and there is so much information about people on the web that it is hard to resist.  The problem is that the information on the Internet may or may not be relevant to the job.  The information also might disclose protected characteristics that you would not otherwise know from simply reviewing a job application (e.g., a person’s race, a disability, etc.).  My own thought is that for most private employers, it is not a good idea to require candidates to turn over passwords to their social media accounts.  Regardless of whether the candidate agrees to do so, it is clearly not a voluntary decision, and it raises a host of potential problems for private employers, beyond even the typical problem of not hiring someone due to a protected characteristic, e.g., what happens if someone at the company loses the password, abuses it, or protects it but is later accused of being responsible for hacking into the account?  The law in this area continues to evolve, but I would avoid becoming a “test case” for having gone too far.

March 6, 2012

Court Upholds NLRB Notice-Posting Requirement, Strikes Down Automatic Sanctions for Failure to Post

By Bradford J. Williams

The U.S. District Court for the District of Columbia issued a highly anticipated ruling last Friday, broadly upholding the National Labor Relations Board's (NLRB's) right to issue a rule requiring most private employers to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a notice. The ruling struck down automatic sanctions for failure to post the required notice, but did not altogether eliminate the possibility that failure to post might constitute an unfair labor practice (ULP) under the NLRA. Absent further Board postponement in light of a likely appeal, or a contrary ruling from a second district court still considering the matter, the notice-posting requirement will go into effect on April 30, 2012.

In August 2011, the NLRB issued a final administrative rule requiring all private employers covered by the Act to post 11-by-17 inch posters "in conspicuous places" advising employees of their rights under the NLRA. Employers who customarily communicate with employees regarding personnel matters using an intranet or internet site were further required to post the notice prominently on that site. As originally written, the rule provided that failure to post would be deemed an ULP under Section 8(a)(1) of the Act. It further permitted the Board to automatically toll (or stay) the six-month statute of limitations for all ULP actions-not just those arising out of a failure to post-where employers had failed to post the required notice.

In late 2011, the NLRB's final rule was challenged in lawsuits filed in the U.S. District Court for the District of Columbia, and the U.S. District Court for the District of South Carolina. Due in part to this pending litigation, the rule's original November 14, 2011, effective date was initially postponed to January 31, 2012, and then postponed again to April 30, 2012.

Last Friday, Judge Amy Jackson of the U.S. District Court for the District of Columbia issued her ruling in one of the two lawsuits, National Association of Manufacturers v. NLRB, No.11-1629 (ABJ) (D.D.C. March 2, 2012). The judge rejected the plaintiffs' contention that the NLRB had exceeded its authority in promulgating the notice-posting requirement. Finding that Congress had not "unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the Act," she upheld the notice-posting requirement as a valid exercise of the Board's authority under the deferential standard of review applicable to administrative rulemaking.

Despite upholding the notice-posting requirement, Judge Jackson found that the NLRB had also exceeded its authority in automatically deeming all failures to post to be ULPs under the Act. Because Section 8(a)(1) only prohibited employers from "interfer[ing]" with rights guaranteed by the Act, it only prohibited employers from "getting in the way - from doing something that impedes or hampers an employee's exercise of the rights guaranteed by [Section 7] of the statute." The automatic sanction of an ULP for any employer who failed to post would not distinguish between situations in which an employer's failure was intended to or did exert influence over employees' organizational efforts, and those in which an employer merely declined or failed to post the required notice. As such, the judge found that the automatic sanction of an ULP was inconsistent with the Act's plain meaning.

Critically, Judge Jackson noted that her decision did not "prevent the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it." As such, the Board may still determine that any particular failure to post constitutes an ULP, at least assuming it makes specific findings that the failure actually interfered with an employee's exercise of his or her rights.

For similar reasons, Judge Jackson struck down the rule's provision permitting the Board to automatically stay the statute of limitations in any ULP action where the employer had failed to post the required notice. The judge found that the Act provided an unambiguous six-month statute of limitations, and that the rule effectively supplanted this limitations period for a broad class of employers regardless of particular circumstances. Again, she nonetheless observed that, under a well-established common law doctrine, her decision did not "prevent the Board from considering an employer's failure to post the employee rights notice in evaluating a plaintiff's equitable tolling defense in an individual case before it."

Judge Jackson's March 2nd ruling is, for the most part, disappointing for employers. It upholds the notice-posting requirement that will go into effect on April 30th absent further Board postponement, or a contrary ruling in the second pending lawsuit, Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516. It further permits the NLRB to find individual failures to post to be ULPs under the Act, at least given appropriate factual findings. Finally, the judge's statute of limitations ruling may expose employers to stale ULP charges where employees succeed in showing that they were unaware of their rights under the NLRA due to an employer's failure to post.

The plaintiffs in National Association of Manufacturers have already vowed to appeal Judge Jackson's ruling. Pending any eventual reversal by the U.S. Court of Appeals for the District of Columbia Circuit, or any contrary ruling by the U.S. District Court for the District of South Carolina, employers are now presumptively required to comply with the rule's notice-posting requirement by April 30th. Employers will consequently need to weigh the possible costs of posting an arguably pro-union poster against the likelihood that Judge Jackson's ruling may eventually be reversed, and additionally consider that failure to post the notice could-but will no longer automatically-result in an ULP or other adverse sanction. For more information or advice on compliance, please contact Bradford J. Williams of Holland & Hart's Labor & Employment Practice Group at (303) 295-8121 or bjwilliams@hollandhart.com.

March 5, 2012

Court Upholds NLRB Notice-Posting Requirement, Strikes Down Automatic Sanctions for Failure to Post

By Bradford J. Williams

    The U.S. District Court for the District of Columbia issued a highly anticipated ruling last Friday, broadly upholding the National Labor Relations Board’s (NLRB’s) right to issue a rule requiring most private employers to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a notice.  The ruling struck down automatic sanctions for failure to post the required notice, but did not altogether eliminate the possibility that failure to post might constitute an unfair labor practice (ULP) under the Act.  Absent further Board postponement in light of a likely appeal, or a contrary ruling from a second district court still considering the matter, the notice-posting requirement will go into effect on April 30, 2012.

    In August 2011, the NLRB issued a final administrative rule requiring all private employers covered by the Act to post 11-by-17 inch posters “in conspicuous places” advising employees of their rights under the NLRA.  Employers who customarily communicate with employees regarding personnel matters using an intranet or internet site were further required to post the notice prominently on that site.  As originally written, the rule provided that failure to post would be deemed an ULP under Section 8(a)(1) of the Act.  It further permitted the Board to automatically toll (or stay) the six-month statute of limitations for all ULP actions—not just those arising out of a failure to post—where employers had failed to post the required notice.

    In late 2011, the NLRB’s final rule was challenged in lawsuits filed in the U.S. District Court for the District of Columbia, and the U.S. District Court for the District of South Carolina.  Due in part to this pending litigation, the rule’s original November 14, 2011, effective date was initially postponed to January 31, 2012, and then postponed again to April 30, 2012.

    Last Friday, Judge Amy Jackson of the U.S. District Court for the District of Columbia issued her ruling in one of the two lawsuits, National Association of Manufacturers v. NLRB, No.11-1629 (ABJ) (D.D.C. March 2, 2012).  The judge rejected the plaintiffs’ contention that the NLRB had exceeded its authority in promulgating the notice-posting requirement.  Finding that Congress had not “unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the Act,” she upheld the notice-posting requirement as a valid exercise of the Board’s authority under the deferential standard of review applicable to administrative rulemaking.

    Despite upholding the notice-posting requirement, Judge Jackson found that the NLRB had nonetheless exceeded its authority in automatically deeming all failures to post to be ULPs under the Act.  Because Section 8(a)(1) only prohibited employers from “interfer[ing]” with rights guaranteed by the Act, it only prohibited employers from “getting in the way – from doing something that impedes or hampers an employee’s exercise of the rights guaranteed by [Section 7] of the statute.”  The automatic sanction of an ULP for any employer who failed to post would not distinguish between situations in which an employer’s failure was intended to or did exert influence over employees’ organizational efforts, and those in which an employer merely declined or failed to post the required notice.  As such, the judge found that the automatic sanction of an ULP was inconsistent with the Act’s plain meaning.

    Critically, Judge Jackson noted that her decision did not “prevent[] the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it.”  As such, the Board may still determine that any particular failure to post constitutes an ULP, at least assuming it makes specific findings that the failure actually interfered with an employee’s exercise of his or her rights.

    For similar reasons, Judge Jackson struck down the rule’s provision permitting the Board to automatically stay the statute of limitations in any ULP action where the employer had failed to post the required notice.  The judge found that the Act provided an unambiguous six-month statute of limitations, and that the rule effectively supplanted this limitations period for a broad class of employers regardless of particular circumstances.  Again, she nonetheless observed that, under a well-established common law doctrine, her decision did not “prevent the Board from considering an employer’s failure to post the employee rights notice in evaluating a plaintiff’s equitable tolling defense in an individual case before it.”

    Judge Jackson’s March 2nd ruling is broadly disappointing for employers.  It upholds the notice-posting requirement that will go into effect on April 30th absent further Board postponement, or a contrary ruling in the second pending lawsuit, Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516.  It further permits the NLRB to find individual failures to post to be ULPs under the Act, at least given appropriate factual findings.  Finally, the judge’s statute of limitations ruling may expose employers to stale ULP charges where employees succeed in showing that they were unaware of their rights under the NLRA due to an employer’s failure to post.

    The plaintiffs in National Association of Manufacturers have already vowed to appeal Judge Jackson’s ruling.  Pending any eventual reversal by the U.S. Court of Appeals for the District of Columbia, or any contrary ruling by the U.S. District Court for the District of South Carolina, employers should prepare now to comply with the rule’s notice-posting requirement before April 30th.  For more information or questions, please contact Bradford J. Williams of Holland & Hart’s Labor & Employment Practice Group at (303) 295-8121 or bjwilliams@hollandhart.com.