Monthly Archives: May 2017

May 31, 2017

Sexual Harassment Claim May Proceed Despite Lack Of Specificity In EEOC Charge

By Brad Cave

The Tenth Circuit recently reversed the dismissal of a quid pro quo sexual harassment claim and sent it back to the trial court for a trial, rejecting the employer’s argument that the required, pre-lawsuit EEOC charge did not allege quid pro quo harassment.

Labeling Between Two Forms of Harassment Not Required

Most human resource professionals recognize that two forms of sexual harassment are prohibited under Title VII’s ban on sex discrimination. Quid pro quo harassment arises when a supervisor demands sexual favors from a subordinate in exchange for the receipt or withholding of a term or condition of employment. Hostile work environment harassment occurs when sufficiently severe or pervasive offensive conduct creates an intimidating, hostile, or abusive work environment. This distinction has been recognized for decades by the courts as two variations of prohibited sexual harassment.

Despite the widespread acceptance of these two recognized forms of unlawful harassment, neither Title VII nor its regulations use the “quid pro quo” or “hostile work environment” labels. As the Tenth Circuit Court of Appeals (whose decisions apply to Wyoming, Colorado, Utah, Kansas, New Mexico, and Oklahoma) recently pointed out, these labels began in academia and then were adopted by the courts. But, according to the Court, despite the ability of the labels to describe the alternate ways that sexual harassment may occur, the labels themselves are not wholly distinct claims. They both raise a claim of sex discrimination in the workplace in violation of Title VII.

Because a claim of sex discrimination encompasses both types of sexual harassment, the majority of the Tenth Circuit three-judge panel concluded that a former employee’s EEOC charge need only allege sufficient facts to alert his former employer of the alleged violation without having to specifically label which form of harassment is being alleged. Jones v. Needham, No. 16-6156 (10th Cir., May 12, 2017).

Male Mechanic Alleged Female Supervisor Made Sexual Advances

The case at issue arose when Bryan “Shane” Jones alleged that he was fired because he refused to have sex with his direct supervisor, Julie Needham. Jones worked as a mechanic for Needham Trucking, of which Ms. Needham was also a shareholder.

To file his claim with the EEOC, Jones completed an intake questionnaire on which he checked the boxes for “Sex” and “Retaliation” as the basis for his charge. He also wrote in sex harassment on the form. Moreover, he identified two witnesses that he claimed would testify that they knew of the sexual harassment and provided that another mechanic was treated better because he had sex with Ms. Needham. He also prepared an attachment to provide more details of his claim, including the statement that “I was terminated because I refused to agree to Ms. Needham’s sexual advances and I rejected all such efforts by her.”

EEOC Issued Right-to-Sue Letter After Preparing An Abbreviated Charge

Unbeknownst to Jones, the EEOC apparently did not receive the separate attachment to his intake questionnaire. Instead, the EEOC prepared a charge form based on the intake questionnaire alone. That charge form stated that during his employment, Jones was subjected to sexual remarks by owner, Julie Needham, that he complained about the sexual harassment to the general manager and other owners and nothing was done, and that Needham terminated his employment. The charge did not specify the additional information that Jones had written in his would-be attachment about Needham’s sexual advances.

After the EEOC issued Jones a right-to-sue letter, he filed a lawsuit in federal court alleging sexual harassment and other state-law claims. Although his complaint initially pursued his sexual harassment claim on both a hostile work environment and quid pro quo basis, he later dropped his argument based on a hostile work environment.

District Court Dismissed Quid Pro Quo Claim For Failure To Exhaust Administrative Remedies

Looking at whether Jones’ EEOC charge form sufficiently alleged sexual harassment, the district court appeared to find it deficient because the form did not include the missing attachment that spelled out the quid pro quo allegations. Relying on precedent that a plaintiff’s claim in federal court “is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC,” the district court dismissed Jones’s sexual harassment claim, holding that Jones had failed to exhaust his administrative remedies for his quid pro quo sexual harassment claim.

Jones appealed to the Tenth Circuit, which revived his claim upon finding that the charge form contained sufficient allegations to trigger an investigation that would look into “what [Needham’s] sexual remarks were, why Mr. Jones was fired, and whether the two events were connected.” As described above, the Tenth Circuit refused to require that the charge be more specific as to the type or form of harassment alleged.

Lesson: Investigate All Possible Harassment Without Regard For Labels

Although Jones’s employer, Needham Trucking, argued that the facts alleged in the EEOC charge failed to provide it with notice that Jones was alleging quid pro quo harassment, the Tenth Circuit didn’t buy that argument. Instead, it expected the employer to investigate and respond to the facts that were in the charge regardless of whether they supported a hostile work environment or quid pro quo claim. Consequently, employers should investigate all facts in an EEOC charge and let their investigations follow where the facts take them.

Failure to exhaust administrative remedies is a very viable and useful defense when an employee’s lawsuit alleges claims outside of the allegations found in the EEOC charge. But when it comes to sexual harassment, don’t get too caught up in any labels regarding the theory of harassment being alleged. If the facts allege a claim under either (or both) forms of harassment, the charge may very well be sufficient.

May 17, 2017

Employer’s Dispute Resolution Program Did Not Prevent Employee Termination

By Steve Gutierrez

The Ninth Circuit Court of Appeals recently upheld judgment in favor of an employer on a former employee’s retaliation and wrongful discharge claims, ruling that the employer’s internal dispute resolution program did not prevent the employer from terminating the employee. In full disclosure, I represented the employer in this case and with my client’s approval, offer this insight into how we obtained this favorable outcome.

Account Executive Fired For Poor Performance and Missed Meetings

Jill Doran-Slevin (Doran-Slevin) began working for United Parcel Service (UPS) as an account executive in late 2010. Despite being assigned thousands of accounts, Doran-Slevin quickly began falling behind in her sales plan results. She also failed to adequately follow-up and serve her customers. In her 2011 performance review, Doran-Slevin was informed she needed to significantly improve her performance.

In early 2012, Doran-Slevin’s new area manager as well as human resources personnel worked with her to create a goal-setting matrix to help her improve her performance. UPS scheduled multiple meetings to discuss the matrix with Doran-Slevin, but she had a series of excuses for not attending the meetings.

During that time, Doran-Slevin composed two letters in which she alleged that she “was the target of discriminatory practices involving [her] gender [and] age.” She sent the first letter to UPS and the second to the EEOC. She did not, however, notify UPS that she had sent her allegations to the EEOC.

Upon receipt of Doran-Slevin’s letter, the company began investigating her allegations. While the investigation was ongoing, Doran-Slevin met with her managers to discuss a revised goal-setting matrix which she signed. Although UPS thought that the meeting had been positive and productive, Doran-Slevin stopped coming to work. For three days, she failed to show up for work or answer her phone. When Doran-Slevin finally called in and met with UPS managers, she indicated that she was interested in leaving with a severance package. UPS scheduled a follow-up meeting in order to discuss possible severance, but after Doran-Slevin failed to show up or answer her phone at the meeting time, UPS terminated her employment.

Employee Failed To Utilize Employee Dispute Resolution Program

UPS has an Employee Dispute Resolution (EDR) process that outlines a five-step internal grievance procedure. It begins with an informal open door step, followed by more formal dispute reviews, up to and including voluntary arbitration. Importantly, however, nothing in the EDR policy prohibits UPS from imposing discipline, including termination, while the internal dispute process proceeds. 

At the time of her termination, UPS informed Doran-Slevin that she could use the EDR process if she wished. In addition, when it sent her a formal termination letter, UPS enclosed a brochure explaining the EDR process. Doran-Slevin admitted at trial that she did not try to initiate the EDR process with respect to her termination. 

Former Employee Sues On Multiple Claims

Doran-Slevin pursued multiple claims against UPS, including retaliation under federal and state anti-discrimination laws based on her filing an EEOC complaint and wrongful discharge under Montana’s Wrongful Discharge From Employment Act.

The case proceeded to a jury trial in federal court in Montana. After many days of testimony, the district court granted judgment as a matter of law in UPS’s favor on Doran-Slevin’s retaliation and wrongful discharge claims. The court allowed Doran-Slevin’s claim for lack of good cause for termination to go to the jury, which returned a unanimous verdict in UPS’s favor. Doran-Slevin appealed to the Ninth Circuit Court of Appeals on multiple grounds, including the grant of judgment as a matter of law in favor of UPS.

Appellate Court Upholds Judgment In Favor of Employer

After considering the written positions of both sides as well as asking questions during oral argument, a three-judge panel of the Ninth Circuit affirmed the district court’s ruling. The Ninth Circuit stated that no reasonable juror could have determined that UPS terminated Doran-Slevin based on her filing of an EEOC claim because it was undisputed that UPS did not learn about the EEOC complaint prior to terminating Doran-Slevin. The Court also rejected Doran-Slevin’s wrongful discharge claims, finding in part that Doran-Slevin had not triggered application of UPS’s EDR program and additionally, the EDR program did not prohibit UPS from terminating Doran-Slevin. The Court upheld judgment in favor of UPS.

Take Aways For Employers

Litigation is rarely a pleasant experience, but achieving a court victory based on sound employment practices can make it worthwhile. Of course this case is unique on its facts and cannot guarantee the outcome of future cases, but some useful best practices regarding terminations may be gleaned from it, including the following:

  • Review employment laws of the state where the employee resides/works prior to making a termination decision. This case arose in Montana which has a unique wrongful discharge statute. An employer who relies on an employee’s at-will status when implementing a termination decision may well be out of luck in a state like Montana, so state-specific differences should be reviewed prior to making employment decisions.
  • Use disclaimers and disavow contractual obligations in your policies. By specifically stating that your handbook or other policies do not constitute a contract between the employee and the company, you may help eliminate claims that you breached your obligation to follow any particular steps prior to terminating employees.
  • If you use an internal dispute resolution process, reserve the company’s right to discipline or terminate employees for legitimate business reasons even while the process is ongoing. Similarly, if you use a progressive discipline policy, make sure that it states that the company may skip steps and escalate to immediate termination should the company deem it necessary.

By taking the time to get your policies and documentation in order and evaluating any risks prior to making a termination decision, you will increase your chances of prevailing should the employee file a claim against your organization.

May 3, 2017

Is Comp Time Coming To The Private Sector?

By Mark Wiletsky

Employees in the private sector may have the option of earning compensatory time off in lieu of overtime pay for hours worked in excess of forty hours per week. The U.S. House of Representatives recently passed the Working Families Flexibility Act of 2017, H.B. 1180, which would amend the Fair Labor Standards Act (FLSA) to permit employees in the private sector to receive compensatory time off at a rate of not less than one and one-half hours for each hour of overtime worked. The bill now heads to the Senate for consideration.

Eligibility For Comp Time

Under the FLSA, compensatory time in lieu of overtime pay has long been permitted for public sector government employees. But non-government, private sector employees have not had the option of accruing comp time as the FLSA requires that private sector employers compensate overtime only through pay. Under this bill, private sector employees who have worked at least 1,000 hours for their employer during a period of continuous employment with the employer in the previous 12-month period may agree to accrue comp time instead of being paid overtime pay.

Employee Agreement For Comp Time

Under the bill, an employer may provide comp time to employees either (a) in accordance with the provisions of an applicable collective bargaining agreement for union employees, or (b) in accordance with an agreement between a non-union employee and the employer. In the case of non-union employees, the agreement between the employee and the employer must be reached before the overtime work is performed and the agreement must be affirmed by a written or otherwise verifiable record maintained by the employer.

The agreement must specify that the employer has offered and the employee has chosen to receive compensatory time in lieu of monetary overtime compensation. It must also specify that it was entered into knowingly and voluntarily by such employee. Requiring comp time in lieu of overtime pay cannot be a condition of employment.

Limits On And Pay-Out Of Accrued Comp Time

The bill specifies that an employee may not accrue more than 160 hours of comp time. No later than January 31 of each calendar year, the employer must pay out any unused comp time accrued but not used during the previous calendar year (or such other 12-month period as the employer specifies to employees). In addition, at the employer’s option, it may pay out an employee’s unused comp time in excess of 80 hours at any time as long as it provides the employee at least 30-days’ advance notice. An employer may also discontinue offering comp time if it provides employees 30-days’ notice of the discontinuation.

The bill provides that an employee may terminate his or her agreement to accrue comp time instead of receiving overtime pay at any time. In addition, an employee may request in writing that all unused, accrued comp time be paid out to him or her at any time. Upon receipt of the pay-out request, an employer has 30 days to pay out the comp time balance. Upon termination of employment, the employer must pay out any unused comp time to the departing employee. The rate of pay during pay-out shall be the regular rate earned by the employee at the time the comp time was accrued, or the regular rate at the time the employee received payment, whichever is higher.

Employee Use of Comp Time

Under the bill, employers must honor employee requests to use accrued comp time within a reasonable period after the request is made. Employers need not honor a request if the use of comp time would unduly disrupt the operations of the employer. Employers are prohibited from threatening, intimidating, or coercing employees either in their choice in whether to select comp time or overtime pay, or in their use of accrued comp time.

Will It Pass?

The bill passed the House 229-197, largely along party lines with all Democrats and six Republicans voting against it. Reports suggest that although Republicans hold 52 seats in the Senate, they will need at least eight Democrats to vote in favor of the bill to avoid a filibuster. Supporters of the bill urge that it offers workers more flexibility and control over their time off. Those who oppose the bill say it could weaken work protections as it offers a promise of future time off at the expense of working overtime hours for free. This is not the first time that federal comp time legislation has been proposed, so we will have to see if the Senate can line up sufficient votes to pass it this time around. Stay tuned.

May 2, 2017

Colorado Legislative Update: The Fate of Employment-Related Bills (So Far!)

By Steve Collis

Every year, the Colorado General Assembly considers a myriad of employment-related bills, but only a small number ever get signed into law. This update highlights what has (and hasn’t) passed this session thus far.

Four Month Legislative Session

For its 2017 legislative session, the Colorado House and Senate convened on January 11th and will adjourn on May 10th. During the 120 days of the session, legislators will introduce, debate, and vote on many bills – over 600 had been introduced by mid-April. But with Democrats holding a majority in the House (37 Democrats; 28 Republicans) and Republicans holding a slight majority in the Senate (18 Republicans; 17 Democrats), few bills get passed in both chambers and make it to the Governor’s desk to be signed into law. Here is a look at the status of significant employment bills up for consideration this year.

Colorado Bills That Passed

Wage Theft Transparency Act (HB17-1021): Colorado’s wage law will now treat information about an employer’s violation of wage law as a public record that may be released to the public upon an open records request. The information may include any notice of citation or notice of assessment issued to an employer for a wage violation following exhaustion of all remedies, unless the information involves a trade secret. Before releasing the information, the Director of the Division of Labor Standards and Statistics will notify the employer of the potential release of the information. The employer then has 20 days to provide the Director with documentation demonstrating that the information is a trade secret. If the Director determines that the information, or any part of it, is a trade secret, it will be treated as confidential and will not be released. For purposes of this designation, a “trade secret” has the same meaning as set forth in Colorado’s Uniform Trade Secret Act, C.R.S. § 7-74-102(4). Governor Hickenlooper signed this bill into law on April 13, 2017.

Entities That May Provide Fingerprints For Background Checks (SB17-189): Prior to this change in law, individuals needing to submit fingerprints for a criminal history check to hold certain licenses or jobs were required to get their fingerprints taken by a local law enforcement agency. As a result of this amendment, other third-party vendors who are approved by the Colorado Bureau of Investigation may capture a person’s fingerprints electronically using the livescan equipment approved by the Bureau. This should make it easier to complete the onboarding process for new hires in jobs requiring fingerprint-based criminal checks, such as school personnel, child and elder care workers, private investigators, and others. The bill passed both the House and Senate and was signed into law by the Governor on April 24, 2017.

Worker’s Comp Clarification on Mental Impairments (HB17-1229): This bill adds definitions for “psychologically traumatic event” and “serious bodily injury” and revises the definition of “mental impairment” under the Colorado workers’ compensation statute. The purpose is to clarify when a worker is entitled to benefits for a mental impairment. The new definitions capture traumatic events such as being subject to the use of deadly force, or witnessing a death or serious bodily injury, or the immediate aftermath of the same. This bill passed the House in late March and passed the Senate on April 19, 2017. It should be headed to the Governor’s desk for signature and if signed, will become effective on July 1, 2018.

Elimination of NLRB Exempt Employers From Colorado Wage Transparency Protections (HB17-1269): Colorado’s anti-discrimination law (CADA) prohibits discrimination on many grounds, including because employees disclose, compare, or discuss their wages. Prior to this amendment, this CADA provision excluded employers who are exempt from the provisions of the National Labor Relations Act (generally, governmental entities, federal reserve banks, and entities subject to the Railway Labor Act). This amendment eliminates the exclusionary sentence, thereby providing wage transparency protections to all Colorado employees. The House passed this bill in early April and the Senate passed it on April 20, 2017. It heads to the Governor’s desk and if signed, will go into effect on August 9, 2017.

Employment-Related Bills Still Under Consideration

FAMLI Act – Creation of Family and Medical Leave Insurance Program (HB17-1307): This bill would create a family and medical leave insurance program (FAMLI) in the Department of Labor and Employment to provide partial wage-replacement benefits to eligible individuals who take leave from work to care for a new child or a family member with a serious health condition or who are unable to work due to their own serious health condition. The insurance program would be funded through employee premiums. Each employee in Colorado would pay a premium (through payroll deduction) based on a percentage of the employee’s yearly wages, not to exceed .99%. The director of the division would determine the premium percentage and the weekly benefit amounts, according to parameters set in the bill. Employers could not require employees to use other accrued paid leaves prior to use of this paid FAMLI leave. This bill passed in the House and was introduced in the Senate on April 28, 2017.

Failed Employment-Related Bills 

Ban-The-Box Bill (HB17-1305): This bill would have affected the timing of a prospective employer’s inquiry into a job applicant’s criminal history. Ban-the-box laws are becoming prevalent in many states and municipalities around the nation. This Colorado bill sought to prohibit employers from advertising that a person with a criminal history may not apply, and from asking on an initial job application about the applicant’s criminal history or stating that those with a criminal history may not apply. Exemptions would have existed for jobs where a law specifically prohibits a person convicted of certain crimes from being employed and for employers who participate in a program to encourage employment of individuals with a criminal history. The bill stated that it would not create a new protected class under employment antidiscrimination laws or create a private cause of action for individuals to file lawsuits. Instead, the Department of Labor and Employment would enforce the law through issuance of warnings, orders of compliance, and for second or subsequent violations, civil penalties. The bill passed in the House but died in Senate committee on May 1, 2017.

Academic Activities Leave (HB17-1001): This bill sought to reinstate the protections of the 2009 Parental Involvement in K-12 Education Act, which automatically repealed in September 2015, to allow employees to take time off to attend academic activities for or with the employee’s child. The bill, one of the first introduced in the House this session, passed in the House but died in Senate committee on March 15, 2017.

Stay Tuned

Legislative work really heats up in the final weeks of the session so stay tuned for further developments.