Monthly Archives: January 2016

January 29, 2016

EEOC Proposes To Collect Pay Data From Employers

Wiletsky_MBy Mark Wiletsky

The U.S. Equal Employment Opportunity Commission (EEOC) plans to collect pay data from employers with more than 100 employees in order to reveal potentially discriminatory pay practices. Through a proposed revision to the Employer Information Report (EEO-1), large employers will report the number of employees by race, gender, and ethnicity that are paid within each of 12 pay bands. The revision is expected to apply to the September 30, 2017 EEO-1 reports.

By gathering this new pay data by race, gender, and ethnicity, the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) intends to identify pay disparities across industries and occupational categories. These federal agencies plan to use the pay data “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” The agencies also believe the data will assist employers in promoting equal pay in their workplaces.

Employers To Be Covered By Revised EEO-1 

Employers with 100 or more employees, including federal contractors, would be required to submit pay data on the revised EEO-1. Federal contractors with 50-99 employees would not be required to report pay data, but still would be required to report sex, race, and ethnicity, as is currently required.

Pay Bands For Proposed EEO-1 Reporting 

Under the EEOC’s proposal, employers would use employees' total W-2 earnings for a 12-month period looking back from a pay period between July 1st and September 30th. For each of the EEO-1 job categories, the proposed EEO-1 would have 12 pay bands. Employers would tabulate and report the number of employees whose W-2 earnings for the prior 12 months fell within each pay band.

The proposed pay bands mirror the 12 pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

(1) $19,239 and under;

(2) $19,240 – $24,439;

(3) $24,440 – $30,679;

(4) $30,680 – $38,999;

(5) $39,000 – $49,919;

(6) $49,920 – $62,919;

(7) $62,920 – $80,079;

(8) $80,080 – $101,919;

(9) $101,920 – $128,959;

(10) $128,960 – $163,799;

(11) $163,800 – $207,999; and

(12) $208,000 and over.

The EEOC published a Question & Answer page on its website to help explain how the pay data would be reported.

Comment Period to Follow 

The EEOC’s announcement of the pay data collection on the revised EEO-1 coincides with a White House commemoration of the seventh anniversary of the Lilly Ledbetter Fair Pay Act. The proposed changes will be officially published in the Federal Register on February 1, 2016. Interested parties and members of the public may submit comments for the 60-day period ending April 1, 2016.

We expect that a significant number of employers, business organizations, and industry associations will submit comments, opposing this additional reporting requirement. Groups also may challenge the changes in court. We will keep you posted as this proposal goes forward.

In the meantime, if your organization has concerns about its pay practices, now is a good time to review those practices and proactively address any troubling issues.

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January 20, 2016

Unaccepted Settlement Offer of Complete Relief Does Not Moot Plaintiff’s Case

Wisor_SBy Sarah Wisor

In a 6-to-3 decision, the U.S. Supreme Court decided that a plaintiff who rejects a settlement offer or an offer of judgment of complete relief may continue litigating the case. Relying on principles of contract law, the Court ruled that once a settlement offer is rejected by the plaintiff, it has no continuing effect. Because the plaintiff remains empty-handed, he may continue to pursue all available remedies in court, on both an individual basis and on behalf of a class. Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016).

Resolving Circuit Court Split on Whether Offer Moots Claim

The dilemma is this: if a defendant offers the plaintiff complete monetary and all other relief that he is entitled to recover on his claims, what is left to be decided or awarded? If there is no case or controversy, a federal court must dismiss the case as moot pursuant to Article III of the Constitution.

The Supreme Court agreed to hear this case because the Circuit Courts of Appeals did not agree on this issue. The First, Second, Fifth, Seventh, and Eleventh Circuit Courts of Appeals had previously ruled that an unaccepted offer does not render a plaintiff’s claim moot. However, the Third, Fourth, and Sixth Circuits had ruled oppositely, holding that an unaccepted offer of complete relief can moot a plaintiff’s claim.

Justice Ginsburg, writing for the majority, pointed to Justice Kagan’s words from her dissent in an earlier case: “When a plaintiff rejects such an offer – however good the terms – [the plaintiff’s] interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief.” Therefore, the Court reasoned, a case is not rendered moot by an unaccepted offer to satisfy the plaintiff’s individual claim.

Chief Justice Roberts Dissents

Chief Justice Roberts dissented, joined by Justices Scalia and Alito. (Justice Thomas concurred with the majority in its holding, but not its reasoning, writing a separate concurrence.) The dissenting justices stated that the “federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitlement to relief already there for the taking.” The dissent would have rendered the case moot on the basis that there is no case or controversy after a defendant agrees to fully redress the injury alleged by a plaintiff.

Can Defendants Still “Pick Off” Named Plaintiffs?

Settling a named plaintiff’s individual claim prior to class certification is appealing to defendants who want to avoid the greater liability and cost of a class action.  While this “picking off” strategy may have been undermined, in part, by the Supreme Court’s decision, the Court did not decide whether payment of complete relief would render the case moot.

This case arose when Jose Gomez sued a marketing firm, Campbell-Ewald, for sending him text messages without his permission. Gomez filed a nationwide class action, alleging violations of the Telephone Consumer Protection Act (“TCPA”), which permits consumers to recover treble damages of $1,500 per call/text message, plus litigation costs. Gomez sought the maximum statutory damages, costs, attorney’s fees, and an injunction against Campbell-Ewald barring further unsolicited messaging.

Before Gomez could file a motion for class certification, Campbell-Ewald offered to settle Gomez’s individual claim and filed an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. Campbell-Ewald offered to pay Gomez $1,503 per unsolicited message and his court costs, but not attorney’s fees, which Campbell-Ewald argued were not available under the TCPA. Campbell-Ewald also offered to stipulate to an injunction that would bar it from sending text messages in violation of the TCPA. Gomez rejected the settlement offer and allowed the Rule 68 offer of judgment to lapse. Campbell-Ewald then sought dismissal of Gomez’s case, arguing that its offer of complete relief rendered his claim moot.  The Supreme Court disagreed.

However, the Court did not decide whether the result would be different if a defendant actually deposits the full amount resolving the plaintiff’s individual claim in an account payable to the plaintiff, with the court then entering judgment in that amount. As Chief Justice Roberts stated in his dissent, the good news is that this case is limited to its facts, and that issue has been left for a future case.

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January 19, 2016

An Uncomfortable, But Not Hostile, Work Environment

Cave_BBy Brad Cave

Certain workplace behavior may be unusual, uncomfortable or downright weird, but may not be unlawful. Do you want to take the chance of knowing what crosses that line?

Imagine receiving this complaint from an employee: “My supervisor frequently compliments my appearance, clothing and cologne. He touched my back and buttocks, claiming he was showing me where he was experiencing back pain. He instructed me to participate in two body-fat contests requiring me to wear a speedo where he again complimented my appearance and tried to touch my buttocks. He repeatedly asked me to join him for drinks during a company event.”

Do these allegations suggest a hostile work environment? Would your company be liable for sex discrimination?

Real Case Offers Guidance

These facts arose in an actual lawsuit filed by Bryan McElroy, a former district sales manager for American Family Insurance (AFI). McElroy was fired by his supervisor, Tony Grilz, after failing to meet sales goals and engaging in insubordinate behavior. After his termination, McElroy filed a charge with the Equal Employment Opportunity Commission (EEOC) and later filed suit in federal court, alleging, among other things, that he was subjected to a hostile work environment based on the above-recited behavior by Grilz.

Uncomfortable Work Behavior

The federal court acknowledged that “some of Grilz’s conduct could make many people uncomfortable.” But the district judge ruled that the conduct did not rise to the level of being so objectively offensive that it created a hostile or abusive work environment. The district court rejected McElroy’s hostile work environment claim and granted summary judgment to AFI.

On appeal to the Tenth Circuit Court of Appeals (whose decisions apply to employers in Colorado, Wyoming, Utah, Kansas, and New Mexico), McElroy argued that if the conduct could make many people uncomfortable, a jury could find it sufficiently offensive to support his hostile work environment claim. The Tenth Circuit disagreed. It failed to see how behavior that was capable of causing “mere discomfort” would necessarily alter the conditions of employment so as to create a hostile work environment.

The court stated that to succeed on a hostile work environment claim, an employee must establish that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The court reiterated that “even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard” necessary for an actionable claim under Title VII. The court affirmed the grant of summary judgment in favor of AFI and against McElroy on his hostile work environment claim. McElroy v. Am. Family Ins., No. 14-4134 (10th Cir. Oct. 30, 2015).

Handling Questionable Complaints

What would you do if you received a complaint based on conduct such as what McElroy reported? Act on it? Ignore it? Here are some tips for handling complaints that may, or may not, rise to the level of severe or pervasive conduct.

Tip #1: Treat Each Complaint Seriously

It may be tempting to dismiss complaints of workplace harassment that may seem minor or inoffensive to you. Don’t do it. You never know if the complainant is telling you the full story or if other, more serious allegations are waiting to be told. In addition, failing to look into a report of workplace harassment will negate certain defenses if the complainant decides to file a lawsuit.

Tip #2: Conduct an Investigation

All reports of workplace harassment should be investigated. Hopefully, your investigation will show that no additional inappropriate behavior is occurring and that the reported conduct was an isolated, non-severe incident. You may, however, find that the conduct is more widespread. Perhaps other employees reporting to the same supervisor have experienced similar conduct, or the conduct has been escalating to involve more physical contact. You need to dig deeper to get the full picture of what the employee and his/her co-workers may be experiencing.

Tip #3: Take Action To Stop Inappropriate Behavior

Whether the behavior rises to the level of creating a hostile work environment or not, take action to stop it. Talk to the person acting inappropriately and explain that conduct such as touching and making comments about other employees’ looks leads to an uncomfortable work environment and must cease. Follow up with the complainant to make sure that he or she is not experiencing further inappropriate behavior or retaliation. Nip such conduct in the bud so that mere uncomfortable behavior does not escalate to unlawful harassment.  

Tip #4: Train Supervisors and Employees Annually

Conduct annual training on sexual harassment and other inappropriate workplace behavior in order to educate your workforce on your harassment policies and complaint-reporting mechanisms. Use training sessions to reinforce your commitment to keeping your company free of discrimination and retaliation. Make sure managers and supervisors are trained on recognizing and responding to complaints of workplace harassment.


Unlawful workplace harassment is tricky to define with any certainty. Conduct that one judge or appellate court finds as causing “mere discomfort” may be deemed sufficiently severe or pervasive so as to create a hostile work environment by another judge or court. Your best practice is to keep inappropriate behavior out of your workplace, follow the tips above and stay out of court in the first place.

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January 12, 2016

Anticipating Revisions To The “Persuader Rules” – What You Need To Know

Mumaugh_BBy Brian Mumaugh

As early as March, the U.S. Department of Labor (DOL) plans to issue its final rules that will significantly narrow the type of union-avoidance activities that employers and their labor attorneys and relations consultants may engage in without having to report those activities to the government. The tightening of the so-call “persuader rules” will mean that employers who utilize labor relations consultants, including lawyers, to help with union-avoidance or collective bargaining activities will need to disclose many more of those activities, and the fees paid for them.

Evolution of the “Persuader Rules”

In the late 1950’s, because of perceived questionable conduct by both unions and employers involved in union organizing and collective bargaining campaigns, Congress enacted the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). The LMRDA seeks to make labor-management relations more transparent by imposing reporting and disclosure requirements on labor organizations and their officials, employers, and labor relations consultants.

Under the LMRDA, the reporting requirements for employers and their labor consultants are triggered when they undertake activities intended to directly or indirectly persuade employees to exercise (or not to exercise) the employees’ right to organize and bargain collectively through representatives of their own choosing. Employers must file a Form LM-10 (Employer Report) that discloses all payments made to unions and union officials, persuader payments made to employees and employee committees, persuader agreements/arrangements made with labor relations consultants, including lawyers, which includes the amount and dates of payments made to such consultants, and any expenditures made to interfere with, restrain or coerce employees, or otherwise obtain information concerning employees or a labor organization. Labor relations consultants must file a Form LM-20 specifying, among other things, information about the consultant and the nature of the “persuader activities” to be performed. Under the LMRDA, the DOL must make all such forms available for public inspection.

The “Advice” Exemption

The LMRDA contains an exemption from the reporting requirements for persuader activities for services that give “advice” to the employer. Except for brief periods when the LMRDA was first enacted and again in 2001, the DOL has interpreted this “advice” exemption to apply to activities where a consultant or lawyer prepares a speech or documents for use by the employer, or revises materials initially drafted by the employer. In other words, as long as the consultant or lawyer did not directly deliver or disseminate speeches or materials to employees for the purpose of persuading them with respect to their organizational or bargaining rights, behind-the-scenes activities where the consultant/lawyer drafts materials for use by the employer would not trigger a reporting obligation. Under the proposed rules, that is about to change. 

Expanded Proposed Interpretation of “Advice” Exemption

Believing its long-standing interpretation of the “advice” exemption to be overly broad, the DOL proposed a narrower interpretation that would require reporting in any case in which the agreement or arrangement with a labor consultant/lawyer in any way calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given. The revised interpretation would define reportable “persuader activity” to include activities where a lawyer or consultant provides material or communications to, or engages in other actions, conduct, or communications on behalf of an employer that at least in part, has the objective of persuading employees concerning their rights to organize or bargain collectively. Exempt “advice” would be limited to recommendations, verbal or written, regarding an employer’s decision or course of conduct.

Stated examples of covered persuader activities that would require disclosure include:

  • drafting, revising, or providing written materials for presentation, dissemination, or distribution to employees
  • drafting, revising, or providing a speech, video, or multi-media presentation to be presented, shown or distributed to employees
  • drafting, revising, or providing website content for employees
  • planning or conducting individual or group employee meetings, and training supervisors or employer representatives to do the same
  • coordinating or directing the activities of supervisors or employer representatives
  • establishing or facilitating employee committees
  • developing personnel policies or practices
  • deciding which employees to target for persuader activity or disciplinary action
  • conducting a seminar for supervisors or employer representatives

The DOL justifies this expansion of the reporting circumstances, in part, because the role of outside consultants and law firms in managing employers’ anti-union efforts has grown substantially over the years, citing reports that somewhere between 71% and 87% of employers facing organizing drives hire third-party consultants to assist in their counter-organizing efforts. The DOL also states that underreporting of persuader activities is a problem as “employees are not receiving the information that Congress intended they receive.” Regardless of its reasoning, the DOL’s proposed change of its 50-year old interpretation will result in significant burdens on both employers and their consultants.

March 2016 Is New Target Date for Final Rule

Almost five years has passed since the DOL published its proposed rule changing the “persuader rules.” After numerous delays in publishing its final rules, the DOL’s regulatory agenda indicates that it expects to issue the final “persuader rules” this March. We will let you know when the final rules are published, or if the timeline changes. In the meantime, you might want to take advantage of the next few months before the new rules kick in to obtain union-avoidance materials and training from your consultants now. At a minimum, talk to your labor relations consultant/labor lawyer about the upcoming changes so that you are aware of how they may impact your labor strategies in the future.

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January 4, 2016

Pregnancy-Related Accommodation Bill To Be Introduced in Colorado Legislature

Following the national trend, a bill to be introduced during Colorado’s next legislative session intends to expand protection for pregnancy-related leave. Specifically, the draft bill would require employers to provide reasonable accommodations to applicants and employees for conditions related to pregnancy and childbirth. If passed, the bill would mean that employers must engage in an interactive process to assess potential reasonable accommodations, provide notice of employee rights, and refrain from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

With the 2016 Colorado legislative session set to convene on January 13th, here are the highlights of the draft bill.

Reasonable Accommodation Requirement

Under the draft bill, an employer would commit an unfair employment practice if it refuses to make a reasonable accommodation for a job applicant or an employee for conditions related to pregnancy or childbirth, unless doing so would impose an undue hardship on the employer’s business. Employers would need to engage in a good-faith interactive process with the employee to determine possible, effective reasonable accommodations.

Most employers should be familiar with the interactive process as it should be used when assessing accommodations for qualified individuals with a disability. Possible reasonable accommodations listed in the draft bill include more frequent or longer break periods, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, time off to recover from childbirth, acquisition or modification of equipment, seating, assistance with manual labor, modified schedules, and break-time and private non-bathroom space for expressing breast milk. Employers would not be required hire new employees, or discharge, transfer, or promote another employee in order to make a reasonable accommodation.

The bill would further prohibit employers from requiring an applicant or employee to accept a reasonable accommodation that the individual chooses not to accept. The bill also would prevent employers from requiring an employee to take leave if there are other reasonable accommodations that may be made. These provisions seem to suggest that the employee has veto power over offered accommodations. This differs significantly from disability law as under the Americans with Disabilities Act (ADA), an employer meets its reasonable accommodation duty if it provides an accommodation that allows the employee to perform the essential functions of his or her job, even if that accommodation is not the one preferred by the employee.

Undue Hardship Analysis 

An “undue hardship” is defined in the bill as an action requiring significant difficulty or expense proven by the employer. Factoring into that determination would be:

  • the nature and cost of the accommodation
  • the overall financial resources of the employer
  • the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
  • the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

If the employer provides a similar accommodation to other classes of employees, it will be presumed that the accommodation does not impose an undue hardship. Employers would have to rebut that presumption if they fail to offer the same or similar accommodation for pregnancy-related conditions.

Retaliation Prohibited 

Employers would be prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined in the bill as a retaliatory action, such as the failure to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other applicable service credits.

Notice and Posting Requirement

If this bill were to become law, employers would be required to provide employees with written notice of their rights under this provision. New employees would have to be provided the written notice at the start of their employment. Additionally, employers would have ten days to provide the notice to individual employees who inform their employer of their pregnancy. There is also a provision to notify existing employees within a specified time after the effective date of the new law. Finally, employers would be required to post the written notice in a conspicuous place at their business in an area accessible to employees.

Likelihood of Bill Passage

Remember that at present, this bill is only a draft and after it is introduced in the House, it will be assigned to a committee. There are many opportunities for legislators to amend, add, or delete provisions in the bill throughout the legislative process.

That said, some form of the bill stands a reasonable chance of passage within the Democratically controlled Colorado House. It has less chance of success in the Republican-controlled Senate. We will watch to see if other legislators add their names as co-sponsors, or if an alternative (perhaps less onerous) bill is introduced in the Senate. We will track this bill and keep you informed of any important developments.

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