Showing posts sorted by relevance for query EEOC. Sort by date Show all posts
Showing posts sorted by relevance for query EEOC. Sort by date Show all posts

Thursday, April 30, 2015

Supreme Court Decision Cracks Open Door for Judicial Review of EEOC Conciliation Efforts

By David R. Vance*

In a decision issued on April 29, 2015, Mach Mining LLC v. Equal Employment Opportunity Commission, the Supreme Court of the United States held that the Equal Employment Opportunity Commission’s (“EEOC”) conciliation efforts are subject to judicial review, albeit within a narrow scope. Prior to this decision, the circuit courts were split on whether the statute requiring the EEOC to pursue conciliation allowed for judicial review of the EEOC’s efforts.

Title VII requires the EEOC to follow certain procedures when investigating a complaint made against an employer. If the EEOC finds reasonable cause after its investigation of an employer, it must then attempt “to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 2000e-5(b). If the EEOC decides the conciliation efforts (which are confidential) failed, then the EEOC may sue the employer.

In the subject case, the EEOC investigated a charge of discrimination in which a female job applicant at Mach Mining alleged that the company refused to hire her as a miner because of her gender. After conducting its investigation, the EEOC sent a letter to Mach Mining informing the company that it had found reasonable cause to believe discrimination occurred and would be in touch soon to begin the conciliation process. When the EEOC sued the mining company a year later, it asserted that all conditions precedent to filing the lawsuit had been met, including the condition that the EEOC conciliate the matter. The mining company’s answer, however, contested this assertion, stating that the EEOC had not made good faith efforts to conciliate. The district court agreed with Mach Mining that the EEOC failed to meet this required condition precedent to filing suit. The Seventh Circuit Court of Appeals subsequently reversed the district court’s decision based on the premise that the EEOC’s conciliation efforts are not subject to judicial review. The Supreme Court heard the case on appeal from the Seventh Circuit.

The Supreme Court addressed the question of whether the EEOC’s attempts to conciliate are subject to judicial review, and if so, to what extent. The Supreme Court found that by definition, the language of Title VII requiring the EEOC to attempt settlement through “conference, conciliation, and persuasion” sets some minimal standards of communication between the EEOC and the employer. To wit, the Supreme Court determined that the EEOC must (1) inform the employer of the nature of the claim (including the employer’s allegedly discriminatory conduct and the person or class harmed by the conduct), and (2) must engage the employer in some discussion so as to give the employer an opportunity to discuss the matter and attempt to reach a resolution.

The Supreme Court also addressed the scope of the review, which tracks the requirements of the statute. The scope of judicial review extends to an inquiry as to (1) whether the EEOC properly informed the employer of the nature of the claim, and (2) whether it gave the employer an opportunity to discuss and rectify the alleged discriminatory practice. In practice, a sworn affidavit from the EEOC attesting to the fact that it met the statute’s requirements and failed to reach a resolution at conciliation should suffice in the absence of evidence to the contrary. If an employer also submits a sworn affidavit based on credible evidence stating that the EEOC failed to meet its duty to conciliate, then a court may engage in fact finding to make a determination. If the court finds that the EEOC did indeed fail to meet its obligations, then it may order the EEOC to conciliate.

Of course, this decision still allows the EEOC broad discretion in both the aggressiveness of its efforts to conciliate and in determining whether a proposed settlement with the employer is acceptable. The Supreme Court pointed out in its decision that Title VII’s language provides the EEOC with broad leeway and flexibility to choose its means and strategy relative to conciliation. The Supreme Court provided only a narrow scope of judicial review to determine whether the EEOC met Title VII’s minimum conciliation requirements.

Despite the minimal requirements of the EEOC’s conciliation efforts and the relatively toothless remediation in the event that the EEOC fails to meet those standards, this decision provides employers with some additional leverage in engaging in conciliation or responding to a suit filed by the EEOC. Employers should keep these conciliation requirements in mind when working with the EEOC.

*David R. Vance, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about the EEOC’s practices, please contact: David R. Vance | drv@zrlaw.com | 216.696.4441
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Thursday, November 20, 2014

EMPLOYMENT LAW QUARTERLY | Fall 2014, Volume XVI, Issue iii

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Tidal Wave: More Systemic Cases on the Horizon

By Stephen S. Zashin*

The Cleveland Field Office of the United States Equal Employment Opportunity Commission (“EEOC”) recently welcomed a new Director. Sworn in on October 6, 2014, Cheryl Mabry-Thomas now presides over the EEOC’s Cleveland Field Office, which is part of the Agency’s Philadelphia District. The Director’s responsibilities include management of the office’s staff and activities.

Ms. Mabry-Thomas has worked for the EEOC for nearly three decades, including many years investigating systemic claims. The EEOC investigates charges of discrimination on an individual and systemic basis. The EEOC defines systemic discrimination broadly as “a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” Given Ms. Mabry-Thomas’ background and the EEOC’s recent activity, employers should expect to see more systemic charges coming out of the Cleveland Field Office.

In recent years, the EEOC has increased its systemic enforcement efforts. The EEOC can make a greater impact with systemic cases involving many employees, as compared to cases involving only a single employee. In 2005, the EEOC established a special task force regarding systemic discrimination. While the vast majority of the charges of discrimination the EEOC receives are for single individuals, the EEOC can turn a charge of discrimination by a single individual into a systemic investigation. As part of its systemic enforcement efforts, the EEOC has targeted recruitment and training programs that may have discriminating barriers of entry, age discrimination in reductions in force, and compliance with client or customer wishes that result in the discriminatory placement or hiring of employees.

The EEOC also targets company policies that are “uniformly applied” but do not accommodate an individual or that have a broad impact on a protected class of employees. For example, hiring or promotion policies that unintentionally, but routinely, exclude certain groups, such as through criminal background checks, are ripe for systemic investigation by the EEOC. Employers should review their company policies and revise any that may have this result when applied.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law and the head of the firm’s Labor and Employment Groups, has extensive experience counseling employers on class or collective actions, including systemic charges brought by the EEOC. For more information about the EEOC’s enforcement strategies or your labor and employment law needs, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.


What’s Next? EEOC Files Its First Ever Lawsuits Based on Transgendered Status

By Drew C. Piersall*

On September 25, 2014, the Equal Employment Opportunity Commission (“EEOC”) sued two employers alleging sex discrimination on the basis of transgendered status. According to the EEOC, each employer violated Title VII of the Civil Rights Act of 1964 by firing an employee because “[she] is transgendered, because of [her] transition from male to female, and/or because [she] did not conform to the . . . employer’s sex or gender-based preferences, expectations, or stereotypes.” These “gender stereotyping” lawsuits likely signify a shift in the EEOC’s enforcement efforts concerning an individual’s transgendered status.

In each case, the employer discharged the employee after the employee announced her transgendered status or began presenting as a woman. In one, the employer discharged the employee approximately four months after she began wearing feminine attire. See EEOC v. Lakeland Eye Clinic, P.A., No. 8:14-cv-02421 (M.D. Fla. filed Sept. 25, 2014). The EEOC alleged co-workers ignored the employee and made derogatory comments and that the employer confronted the employee about her changing appearance. The employer also allegedly told the employee it was eliminating her position but then hired a replacement approximately a month later. In the second case, the employee allegedly informed her employer via letter of her plans to undergo a gender transition. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 2:14-cv-13710 (S.D. Mich. filed Sept. 25, 2014). The EEOC alleged that less than one month later the employer’s owner stated the employee’s plan to undergo a gender transition was unacceptable and fired the employee. In both cases, the EEOC seeks injunctive and monetary relief.

These cases are not anomalies or outliers. Rather, in its most-recent Strategic Enforcement Plan, the EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as a top enforcement priority. In addition, the U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, previously held that a transgendered individual presented a valid Title VII discrimination claim. See Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). The U.S. Office of Special Counsel recently reached a similar conclusion. On August 28, 2014, the Office of Special Counsel found the Army discriminated against an employee based on gender identity following the employee’s announced transition from male to female. The Office of Special Counsel analogized the situation to Title VII claims.

Given the EEOC’s increased emphasis on protecting transgendered employees, employers must be cognizant of the protections Title VII and related state laws afford transgendered employees and should update their company handbooks and policies accordingly.

*Drew C. Piersall, a member of the firm’s Columbus office, practices in all areas of labor and employment law. If you have questions about the impact of transgendered issues on your workplace, please contact Drew (dcp@zrlaw.com) at 614.224.4411.


The FLSA’s Professional Exemption Requires a Degree

By Michele L. Jakubs*

The U.S. District Court for the Northern District of Ohio recently shot down a restaurant’s effort to classify several chefs as “learned professionals” under the Fair Labor Standards Act (“FLSA”). See Solis v. Suroc, Inc., 2014 U.S. Dist LEXIS 127929. The Department of Labor sued the owners of several Ohio restaurants for failing to pay minimum wage and overtime to certain chef employees. Generally, the FLSA requires employers to pay non-exempt employees minimum wage and, for hours worked in excess of 40 hours in a work week, overtime wages.

The restaurant claimed that the chefs, referred to as #2 and #3 chefs, fell within the FLSA’s exemptions for professionals and executives. Codified as 29 U.S.C. § 213, the FLSA provides several exemptions from its minimum wage and overtime wage requirements, including “any employee employed in a bona fide executive, administrative, or professional capacity.” The Code of Federal Regulations further defines the exemptions for professionals in 29 C.F.R. § 541.301 and for executive employees in 29 C.F.R. § 541.100.

To fall within the professional exemption, an employee must: (1) “perform work requiring advanced knowledge;” (2) the work must be in a field of science or learning; and (3) customarily, the employee must have acquired the advanced knowledge through a “prolonged course of specialized intellectual instruction.” The regulations specify that a degree is prima facie evidence that an employee has met the third requirement.

In applying these three factors, the court determined that the restaurant failed to prove that the #2 and #3 chefs fell within the professional exemption because their respective job descriptions did not require any degree or formal culinary education. Further, the court found that the chefs’ extensive on-the-job training was insufficient to meet the regulation’s requirement of a prolonged course of specialized intellectual instruction. The court noted that the restaurant offered no evidence supporting its argument that the chefs received instruction by using the restaurant as a school-type setting during off-hours.

The regulation specifies that the professional exemption does not apply to occupations in which most employees acquire their skill through experience rather than advanced, specialized intellectual instruction. The court refused to extend the exemption to positions requiring extensive work experience, but no degree, like with the #2 and #3 chefs. The court continued that for the professional exemption to apply, the employee must begin the job in possession of the advanced knowledge customarily acquired through a prolonged course in specialized instruction. Generally, training the employee after hire is insufficient.

The restaurant also argued that the #3 chefs fell within the executive employee exemption, as defined in 29 C.F.R. § 541.100. In order to fall within the executive employee exemption, an employee must: (1) be compensated on a salary basis of no less than $455 per week; (2) have the primary duty of managing the enterprise or a department or subdivision of the enterprise; (3) “customarily and regularly” direct the work of two or more employees; and (4) have the authority to hire and fire other employees, or make suggestions regarding hiring, firing, and promotion that “are given particular weight.” The court analyzed only the fourth requirement, finding that the #3 chefs did not meet the exemption as they had no authority to hire and fire other workers, and there was no evidence that the #3 chefs made suggestions or recommendations regarding hiring, firing, or promotion decisions.

As this case demonstrates, determining whether an employee meets the requirements for exemption from minimum wage and overtime under the FLSA is fact intensive. Improperly applying an exemption can prove costly for employers, and when in doubt, employers should contact counsel.

*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information on the FLSA’s wage and hour requirements or exemptions, please contact Michele (mlj@zrlaw.com) at 216.696.4441.


Will Supervisors Soon Be Off the Hook in Employment Discrimination Cases?

By Sarah K. Ott*

Recently, the Ohio Supreme Court issued a game-changing decision concerning whether supervisors can be held liable alongside employers in employment discrimination cases. The case, Hauser v. City of Dayton Police Dep’t., 140 Ohio St. 3d 266, 2014-Ohio-3636, involved a female police officer who claimed that the Dayton Police Department and her supervisor treated her unfavorably as compared to her male peers. The officer named both the Dayton Police Department and her direct supervisor as defendants. The court did not rule on the merits of Hauser’s discrimination claim; instead, it only addressed the narrow question of whether Ohio law expressly imposes liability on employees of political subdivisions in employment discrimination cases.

Ohio Revised Code § 2744.03 grants employees of political subdivisions (such as police departments and other government employers) immunity from tort liability, unless another section of the Ohio Revised Code expressly imposes liability. The court’s analysis focused on whether R.C. § 4112.02(A), which prohibits employer discrimination, expressly imposes liability. Ohio Revised Code § 4112.01(A)(2) defines “employer” as “the state, any political subdivision of the state, any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer” (emphasis added). The Ohio Supreme Court previously interpreted the bolded phrase to include employees as among those liable for employment discrimination (the seminal case being Genaro v. Cent. Transp., 84 Ohio St.3d 293, 703 N.E.2d 782 (1999)).

In Hauser, the Ohio Supreme Court found that Ohio law does not permit individual liability of a supervisor of a political subdivision in a discrimination case brought under R.C. § 4112.02(A). In reaching its decision, the court followed two lines of reasoning. First, it found that in the historical context in which the General Assembly drafted R.C. Chapter 4112, the theory of respondeat superior governed. Respondeat superior refers to the general rule that an employer is responsible for its employees’ acts performed in the course of the employees’ job; that is, an employer is vicariously liable for the acts of an employee. Under the same theory of vicarious liability, federal courts decline to hold individual employees liable under Title VII. As such, the court reasoned that it is contrary to the theory of respondeat superior to impose liability on an individual employee.

Second, the court reasoned that imposing liability on individual employees contradicts the general context and purpose of R.C. § 4112.02(A). The court noted that it makes little sense to hold supervisors liable when R.C. § 4112.02(A) exempts employers with fewer than four employees from discrimination liability. Furthermore, the court observed that the statute expressly provides for individual liability elsewhere. Ohio Revised Code § 4112.02(J) holds individuals liable for aiding and abetting the discriminatory practices of an employer, but this section is arguably superfluous if R.C. § 4112.02(A) requires individual liability. Ohio Revised Code § 4112.02(J) demonstrates that when the General Assembly intends to impose individual liability on employees, it does so expressly rather than by implication.

So what does this mean for employers today? It means that supervisors in political subdivisions are not personally liable in employment discrimination cases brought under R.C. § 4112.02(A). This decision also may be a harbinger of future rulings similarly finding that private sector employees are likewise immune from liability for employment discrimination. While the Hauser Court refused to overrule Genaro, its decision calls into question the holding in Genaro and suggests the Ohio Supreme Court may be willing to revisit whether supervisors of private employers are subject to employment discrimination liability under R.C. § 4112.02(A). Also, do not be surprised if savvy plaintiff’s attorneys start bringing more aiding and abetting claims under R.C. § 4112.02(J).

*Sarah K. Ott practices in all areas of labor and employment law. For more information about the Ohio Supreme Court’s decision in Hauser and its consequences, please contact Sarah (sko@zrlaw.com) at 216.696.4441.


Public Sector Alert: How To Conduct Yourself Under the Open Meetings Act

By Jonathan J. Downes*

The Second District Court of Appeals came down hard on an Ohio public body for violating Ohio’s Open Meetings Act. Maddox v. Greene Cty. Children Servs. Bd. of Dirs., 2014-Ohio-2312. Over the course of a year, the public body entered into executive session during numerous public meetings to discuss an employee’s job performance and employment status. After the public body discharged the employee, the employee challenged the discharge. The employee claimed the public body violated Ohio’s Open Meetings Act by holding private meetings to discuss the employee’s performance and job status. The court agreed with many of the former employee’s claims. The decision provides a great reminder as to how public bodies must conduct themselves and highlights the following important sections of Ohio’s Open Meetings Act:

1. When entering an executive session, public bodies must specifically cite the appropriate statutory exception for conducting a meeting outside the public’s purview.

When holding meetings, courts construe the Open Meetings Act liberally in favor of taking action and conducting deliberations in meetings open to the public. Public officials may convene private executive sessions to discuss sensitive information, but when doing so must follow certain procedures. Specifically, public officials only may conduct executive sessions for one of the reasons detailed in Ohio Revised Code Section 121.22(G) and must state the reason during the public meeting. The Maddox Board went into executive session to discuss the following: 1) an employee’s evaluation; 2) “upcoming negotiations;” and 3) “personnel matters” or “personnel issues.” In each instance, the Maddox Board failed to sufficiently specify the executive session’s purpose during the public meeting.

Public bodies may discuss an employee’s job performance in an executive session, but before doing so, must identify a R.C. § 121.22(G) purpose. In Maddox, the Board went into executive session to discuss the “Executive Director’s Evaluation.” The Open Meetings Act does not specifically include evaluating a public employee as an exception to the open meeting requirement. However, the court considered a previous decision where a public body discussed an employee’s job performance when considering that employee’s dismissal. Ohio Revised Code Section 121.22(G) authorizes executive sessions to consider the dismissal of public employees. Since the Open Meetings Act does not include an exception for evaluating public employees, a public body must link each executive session regarding an employee’s job performance to an exception enunciated in R.C. § 121.22(G).

In fact, public bodies should always reference a specific R.C. § 121.22(G) exception. At different points, the Maddox Board entered executive session to discuss “upcoming negotiations” and “personnel matters” or “personnel issues.” Relying on case law, the court concluded these non-specific references were not proper statutory purposes and did not satisfy R.C. § 121.22(G). Instead, the Maddox Court found that “the statute requires [the body] to be more specific by denoting the precise type of ‘personnel’ matters it would address, such as hiring, discipline, termination, etc.” Therefore, whenever a public body wishes to enter executive session, it should specifically reference a R.C. § 121.22(G) exception.

2. After concluding an executive session, public bodies must re-open the meeting to the public and move to adjourn the meeting prior to concluding business.

After an executive session ends, the public body must reopen the meeting to the public and make a motion and vote to adjourn the public meeting. The Maddox Board regularly ended the executive sessions without reopening the meeting to the public, which the court found violated the Open Meetings Act. Instead, the Maddox Board should have given those present a reasonable opportunity to re-enter the room after the executive session ended, before officially concluding business. Public bodies that enter an executive session should always re-convene the public meeting before adjourning that meeting.

3. When public bodies make decisions based on improper deliberations, they must hold subsequent deliberations sufficient to support the decision prior to taking formal action.

Ohio Revised Code Section 121.22(H) invalidates formal actions based on deliberations held in closed meetings that do not comply with one of the executive session exceptions detailed in R.C. § 121.22(G). The Maddox Board terminated an Executive Director after holding a proper executive session. However, the court concluded the Maddox Board based its termination decision on previous deliberations held during improper executive sessions. In response, the Maddox Board pointed to additional discussions held in the proper executive session. However, it was not enough “to point to some ‘new’ or ‘additional’ deliberations if the employment action” still resulted from improper deliberations. Therefore, the Maddox Board had to re-deliberate in either a public session or a properly held executive session. In particular, those subsequent discussions had to be sufficient “to support a finding that [the Board’s] discharge decision did not result from prior improper deliberations.” Any time a public body suspects previous deliberations or actions were improper, the public body should hold subsequent substantive deliberations prior to taking formal action.

These principles serve as an excellent reminder of how public bodies must conduct themselves in light of Ohio’s Open Meetings Act.

*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience advising public entities and employers. For more information about the application of the Open Meetings Act to executive sessions, please contact Jonathan (jjd@zrlaw.com) at 614.224.4411.


Ohio’s Minimum Wage to Increase to $8.10

By David P. Frantz*

On January 1, 2015, pursuant to a 2006 Amendment to the Ohio Constitution, which provides for an annual minimum wage increase tied to the rate of inflation, Ohio’s minimum wage will increase fifteen cents for non-tipped employees to $8.10 per hour. The state minimum wage for tipped employees will increase seven cents to $4.05 per hour. The increase will apply to all Ohio employees, age sixteen and older, employed by businesses with annual gross receipts of more than $297,000.

Ohio employees of businesses with annual gross receipts below $297,000 and fourteen- and fifteen-year-old employees are only entitled to receive hourly wages equivalent to the federal minimum wage. The federal minimum wage currently stands at $7.25 per hour for non-tipped employees and $2.13 per hour for tipped employees and is not subject to an automatic annual increase.

*David P. Frantz practices in all areas of labor and employment law. For more information about minimum wage changes or your labor and employment law needs, please contact David (dpf@zrlaw.com) at 216.696.4441.


Z&R SHORTS


Best Lawyers®

Z&R is happy to announce the following Z&R Labor and Employment Group lawyers have been selected for inclusion in Best Lawyers in America 2015:

  • George S. Crisci – Employment Law Management, Labor Law – Management, and Litigation – Labor and Employment
  • Jon M. Dileno – Employment Law – Management
  • Jonathan J. Downes – Employment Law – Management and Labor Law – Management
  • Stephen S. Zashin – Labor Law – Management

Zashin & Rich is pleased to announce the return of Jason Rossiter

Jason Rossiter has returned to Zashin & Rich after a short stint out on the west coast. Jason, who first began working at Zashin & Rich in 2007, has been practicing law for nearly 15 years. He has a wealth of experience drafting contracts, advising employers on compliance with workplace employment, privacy, and technology laws, and representing employers in employment-related litigation.


Zashin & Rich Proudly Launches New Website

After several months of development, we proudly launched on November 10, 2014. Many thanks to Unity Design for capturing our energy and corporate culture in our re-branding and website. zrlaw.com


Upcoming Speaking Engagements

Friday, December 19, 2014, at 1:45pm
Drew C. Piersall is presenting "Individual vs. Official Capacity and the Ex Parte Young Doctrine" at 1:45 p.m. for the Ohio Department of Public Safety's inaugural "Defending §1983 Actions Against Public Clients" at the Department's headquarters located in Columbus, Ohio.

Monday, February 2, 2015, beginning at 3:30pm
Jonathan J. Downes presents "Virtual Realities: Dealing with Arbitration, Arbitration Decisions, and Mid-Term Bargaining" at OHPERLA 31st Annual Training Conference beginning at 3:30 p.m. at the Roberts Centre in Wilmington, Ohio.

Tuesday, February 3, 2015, beginning at 10:30am
Drew C. Piersall presents "'Modern Family' Employment: Today's Discrimination Trends" at OHPERLA 31st Annual Training Conference beginning at 10:30 a.m. at the Roberts Centre in Wilmington, Ohio.

Thursday, February 12, 2015, at 2:00pm
Patrick J. Hoban presents "Affordable Care Act" at 2:00 p.m. for the American Payroll Association, Greater Cleveland Chapter at the Crown Plaza in Independence, Ohio.

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Tuesday, July 14, 2015

EMPLOYMENT LAW QUARTERLY | Volume XVII, Issue ii

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Religious Accommodations and Bargaining – Why Collective Bargaining Agreements May Trump Accommodations

By George S. Crisci*

A Federal Court recently affirmed an employer’s decision to discharge a janitor who claimed the employer discriminated against him on the basis of his religious belief. Bolden v. Caravan Facilities Mgmt., LLC, No. 1:14-CV-26-RLM, 2015 U.S. LEXIS 73619 (N.D. Ind. June 8, 2015). The employer, pursuant to a neutral, rotating schedule, assigned the plaintiff-employee janitor to work on six Sundays over a ten-week span. The employer had negotiated the schedule as part of the collective bargaining agreement (“CBA”) it entered into with the employee’s union. However, the employee, an ordained Baptist minister, did not work any of the scheduled shifts. He called off, did not appear, or traded shifts with another employee in order to observe the Sabbath. After the employer terminated his employment based on unsatisfactory performance, the employee sued, claiming the employer violated Title VII of the Civil Rights Act of 1964 (“Title VII”).

The Court found the employer did not violate Title VII by failing to accommodate the employee’s religious belief. Reasonable accommodations eliminate conflicts between religious practices and employment requirements. According to the Court, the employer provided a reasonable accommodation through two mechanisms. First, the employer utilized a neutral, rotating shift schedule that spread weekend work among the employees. Second, the employer permitted employees to trade shifts. The opportunity to trade shifts eliminated any conflict the neutral schedule created with an employee’s request for days off.

The Court also reasoned that any additional accommodation would impose an undue hardship on the employer. Employers do not have to incur more than a de minimis cost, in lost efficiency or higher wages, to accommodate an employee’s religious practice. Here, the Court considered the following accommodations: 1) making an exception to the neutral, rotating schedule by never scheduling the employee on Sunday; or 2) moving the employee to third shift. According to the Court, these options imposed more than a de minimis cost. If the employer did not change the employee’s schedule, the employer had to a) pay someone overtime to cover the shift (placing the burden on co-workers), b) work with one less employee (loss of productivity), or c) hire another employee (additional expense).

The CBA’s neutral, rotating schedule and seniority system played a significant role in the Court’s decision. Under the CBA, seniority determined shift selection. The employee worked second shift because he was one of the least-senior union members. Therefore, if the employer moved him to a different shift, it would violate the CBA and deny other employees their contractual rights. The employer had consulted with the union, but the union was unwilling to make an exception to the neutral, rotating schedule it negotiated.

Employers subject to CBAs should consider this decision when presented with requests for accommodations based on religious belief, particularly when those requests violate the CBA.

* George S. Crisci, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. If you have questions about the impact of religious accommodations on your workplace, please contact George (gsc@zrlaw.com) at 216.696.4441.



EEOC: Transgendered Employees Can Use the Restroom of Their Choice

By Andrew J. Cleves*

On April 1, 2015, the Equal Employment Opportunity Commission (“EEOC”) ruled that a federal agency discriminated against a transgendered employee when it prohibited the employee from using the common women’s restroom. Lusardi v. McHugh, Dep’t of Army, Appeal No. 0120133395, (EEOC Apr. 1, 2015). The employee presented as female and had not undergone medical procedures to transition from male to female. According to the EEOC, when the employer required the employee to use a single-user restroom, the employer committed sex discrimination in violation Title VII of the Civil Rights Act of 1964 (“Title VII”).

In its decision, the EEOC adopted a standard for determining the sex of transgendered individuals – how the employee identifies himself/herself. Specifically, the EEOC concluded “there is no cause to question that Complainant – who was assigned the sex of male at birth but identifies as female – is female.” Here, after the employee began transitioning her gender presentation, she reached a mutual agreement with her employer regarding bathroom use: she would use a single-user restroom instead of the women’s restroom until she had undergone surgery. The employer advocated this approach based on anticipated discomfort from other female employees. Subsequently, the employee used the women’s restroom when her designated restroom was out-of-order. A supervisor confronted the employee about this use, claiming the employee must prove she had undergone “the final surgery” before she could use the women’s restroom.

The EEOC concluded that the employer’s act of prohibiting the employee from using the women’s restroom constituted direct evidence of discrimination. Here, the employer admitted the employee’s transgendered status was the motivating factor for its decision to prohibit the employee from using the women’s restroom.

The EEOC also determined that restricting the employee from using the women’s restroom was an adverse employment action. According to the EEOC, “equal access to restrooms” constitutes a significant, basic condition of employment. Therefore, where a transgendered individual has begun living and working as a woman (or man), the employer must allow the employee access to the women’s (or men’s) restroom.

Finally, the EEOC rejected the employer’s arguments of 1) anticipated discomfort of female employees and 2) the employee-employer transition agreement. “Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity.” The EEOC concluded an employer may not condition access to terms, conditions, or privileges of employment on completing certain medical procedures that the employer feels conclusively proves the individual’s gender identity. Even though the employee originally agreed to use the single-user restroom, employees cannot prospectively waive their Title VII rights.

This EEOC decision is not an anomaly or new trend. Rather, the EEOC has begun pursuing these types of sex discrimination cases with increasing frequency. In its most-recent Strategic Enforcement Plan, the EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as a top enforcement priority. Additionally, as Zashin & Rich previously reported, the EEOC filed two sex-stereotyping, gender-discrimination lawsuits in September 2014. In these cases, the EEOC alleged the employer discriminated against the transgendered employee because the employee failed to conform to the employer’s “sex or gender-based preferences, expectations, or stereotypes.” On April 21, 2015, one court concluded the EEOC sufficiently stated a claim under Title VII and allowed the case to proceed. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 14-13710, 2015 U.S. LEXIS 52016 (E.D. Mich. Apr. 21, 2015) In addition, the U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee, previously held that a transgendered individual presented a valid Title VII discrimination claim. Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). On June 1, 2015, as Zashin & Rich recently highlighted, the Occupational Safety and Health Administration released a new best practice guide concerning transgendered workers’ use of workplace restrooms.

Given the EEOC’s increased emphasis on transgendered employees, employers must be cognizant of the protections Title VII and related state laws afford transgendered employees. In particular, employers should consider this EEOC decision when presented with employees transitioning their gender identity and employers should update their company handbooks and policies accordingly.

* Andrew J. Cleves, practices in all areas of labor and employment law. If you have questions about the impact of transgendered issues on your workplace, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.


Employee Performance Reviews Have Their Day in Court: How Employers Can Get the Most out of Employee Performance Reviews

By Sarah K. Ott*

Recently, the trial between Ellen Pao and her former employer, venture capital firm Kleiner Perkins Caufield & Byers (“Kleiner Perkins”), captivated the business and technology world. Pao, formerly a junior partner at the firm, sued Kleiner Perkins for gender discrimination and retaliation, seeking $16 million in damages. Pao argued that the firm’s culture prevented women from advancing into the more lucrative senior partner positions and that the firm retaliated against her after she filed the lawsuit, eventually terminating her employment. Kleiner Perkins asserted that Pao’s poor performance and inability to get along with colleagues prevented her from receiving a promotion and led to her discharge. On March 26, 2015, a California jury found for Kleiner Perkins on all counts. Since then, Kleiner Perkins has sought to recover close to $1 million in expenses incurred during trial from Pao, and a judge has tentatively ruled that Pao must reimburse Kleiner Perkins for about $250,000 in expenses. Pao recently filed a notice of appeal.

The lawsuit captured headlines in major newspapers and blogs because it pulled back a curtain on the inner workings of one of Silicon Valley’s most respected venture capital firms (known for funding Google and Amazon in their start-up days). From an employment law perspective, the trial highlighted some of the benefits and pitfalls of employee performance reviews. Both sides used Pao’s performance reviews as evidence, with Pao’s attorneys claiming they showed Kleiner Perkins’ bias against Pao, and the defense relying on them as records of her sub-par performance. In particular, Pao’s attorneys’ use of the performance reviews highlights the potential for reviews to backfire against the employer if not done well. Pao’s attorneys pointed to the reviews as evidence of retaliation, since she received poor performance reviews in the year after she filed her lawsuit (despite receiving far more positive reviews the year prior). They also used the performance reviews as evidence of discrimination, noting that Pao received conflicting feedback (advising her to be both more and less aggressive) and that her male peers who received similar comments were later promoted.

The trial serves as a reminder to employers on how to best use employee performance reviews to encourage better work from employees – and how to avoid potential legal pitfalls. Performance reviews can help employers by motivating employees to improve in certain aspects of their jobs or continue good work in other areas. They also create a written record showing that the employer counseled an employee on poor performance and track improvements (or lack thereof).

Abiding by the following tips will help employers more effectively use employee performance reviews:

  • Common standards: create and adhere to the same standards so that every employee with the same job or role is evaluated based on the same criteria;
  • Set goals: doing so sets a benchmark for the employer to evaluate that employee’s performance;
  • Be specific: specificity helps employees understand the employer’s expectations and helps to prevent miscommunication;
  • Use deadlines: informing employees of when they are expected to reach a goal creates a record of the employer treating the employee fairly; and
  • Avoid personality critiques: rather than general criticism of an employee’s personality traits, employers should focus on specific instances when that trait created a problem.

Finally, to the extent that the employer can identify objective criteria, the review will be all the better.

* Sarah K. Ott practices in all areas of labor and employment law. For more information about conducting employee evaluations or other questions related to performance reviews, please contact Sarah (sko@zrlaw.com) at (216) 696-4441.


Courts Have Little Sympathy for Employer Mistakes in Complying with the Fair Credit Reporting Act

By Drew C. Piersall*

The Fair Credit Reporting Act (“FCRA”) regulates the collection and use of consumer information, including employee background and credit checks, and requires employers that rely on third-party companies to conduct background checks to follow certain procedures in notifying the individual being checked. The requirements include the following:

  • The employer must notify the individual that the information obtained in the background report may be used in the employer’s decision-making. The notice must be in a “stand-alone” format and may only have minimal additional information accompanying it.
  • The employer must obtain the individual’s written permission to perform the background check. The permission form may be part of the notification document.
  • For permission to obtain background reports throughout the individual’s employment, the employer must clearly state that intention on the permission form.
  • In order to obtain an investigative report, including information on the employee or applicant’s lifestyle, personality, and reputation, the employer must inform the individual of his or her right to a description of the investigation and its scope.

The FCRA requires additional action from employers who take an adverse action based on the information learned from a background check conducted by a third-party company, such as deciding not to hire an applicant, revoking a job offer, or termination. Before taking the adverse action, the employer must provide the individual with a copy of the report and a document summarizing the individual’s rights under the FCRA and give the individual a meaningful opportunity to respond to the information.

Absent an adequate response and assuming the employer takes the adverse action, the employer must: (1) notify the individual of the adverse action; (2) provide the individual with specific credit score information from the report; (3) inform the individual of his or her right to obtain a free copy of the report within 60 days and dispute the information in the report; and (4) provide the contact information of the third-party company that compiled the report for the employer and explain that the third-party company did not make the decision to take the adverse action and cannot explain the reasons for the action. Employers also must destroy any background reports in a secure manner, such as by shredding them or permanently deleting electronic copies.

Despite the many requirements placed on employers by the FCRA, a spate of recent cases show that courts have little sympathy for employers who commit minor technical violations of the law, even when complying with the spirit of the law’s requirements. For example, a federal court in Virginia recently denied summary judgment to an employer who allegedly violated the FCRA when it failed to provide “stand alone” notice that it would be conducting a background check by including a liability waiver on the same document. Milbourne v. JRK Residential America, LLC, No. 3:12cv861, 2015 U.S. Dist. LEXIS 29905 (E.D. Va., Mar. 15, 2015). Other cases involve employers rescinding job offers based on information discovered through a background report before providing the job applicants with a meaningful opportunity to respond to the information. In one case, the employer revoked a job offer to an applicant based on erroneous information in a background report without giving the applicant a chance to challenge the report. Jones v. Halstead Management Co., LLC, No. 14-CV-3125, 2015 U.S. Dist. LEXIS 12807 (S.D.N.Y., Jan. 27, 2015). In another case, the employer rescinded a job offer after its receipt of an unfavorable criminal background report on an applicant without giving the applicant time to correct the inaccurate information with the consumer reporting agency before filling the position. Miller v. Johnson & Johnson, No. 6:13-cv-1016, 2015 U.S. Dist. LEXIS 4448 (M.D. Fla., Jan. 14, 2015).

In a more employer-friendly decision, a federal court in Massachusetts recently granted summary judgment for an employer despite the plaintiffs’ argument that the employer’s notice and request for authorization to conduct a background check did not limit itself “solely” to the disclosure because it included a short preamble regarding customer safety. Goldberg v. Uber Techs., Inc., No. 14-14264-RGS, 2015 U.S. Dist. LEXIS 44675 (D. Mass., Apr. 6, 2015). The court held the employer did not violate the FCRA by including “a few sensible words” about why the company chose to use background checks (i.e., customer safety). The court also found that the employer did not violate the FCRA by failing to notify the job applicant that it intended to make an adverse decision based on information included in the background report. The court found that the statute does not require advanced notice that the employer intends to take an adverse action – it merely requires providing the individual with the background report and a document stating the individual’s rights under the FCRA.

With FCRA cases seemingly on the rise, employers who use third-party companies to compile background information should review their background check policies and procedures. Failure to strictly comply with FCRA requirements can lead to costly litigation, including class action lawsuits brought on behalf of employees and applicants subject to the employer’s non-compliant background check policies and procedures.

* Drew C. Piersall works in the firm’s Columbus office and practices in all areas of labor and employment law. If you have questions about conducting background and credit checks or the FCRA in general, please contact Drew (dcp@zrlaw.com) at 614.224.4411.


Z&R SHORTS


Congratulations!

Drew C. Piersall was selected to serve as the Chair of the Columbus Bar Association’s Labor & Employment Law Committee for 2015-2016. The Labor & Employment Law Committee meets on a monthly basis in the fall, winter and spring. In an effort to better serve clients and the legal profession, the Committee shares ideas and provides information on topics of concern to all who participate in the field of labor and employment law.

Jonathan Downes was inducted as a Fellow into the College of Labor and Employment Lawyers. The College of Labor and Employment Lawyers is an intellectual and practical resource for the support of the legal profession and its many audiences. The primary purpose of the College is recognition of individuals, sharing knowledge, and delivering value to the many different groups who can benefit from its value model.

Seminars

Thursday, July 16, 2015 at 10:30 am
Patrick M. Watts presents "2015 Legal Update" at 10:30 a.m. at the Lake/Geauga Area Chapter of the Society for Human Resource Management luncheon.

Tuesday, September 22, 2015 at 1:00 pm
Jonathan Downes presents "Risk Management for Supervisors" for the Ohio Association of Chiefs of Police beginning at 1 p.m. at the Crowne Plaza Columbus North.
Crowne Plaza Columbus North | 6500 Doubletree Avenue, Columbus, OH

Thursday, September 24, 2015 at 10:00 am
Jonathan Downes and Drew C. Piersall present "Negotiations – Post Recession and Impact of The Affordable Care Act" for the Ohio GFOA – Annual Conference & Membership Meeting to be held at the Hilton Netherland Plaza in Cincinnati.
Hilton Netherland Plaza | 35 West Fifth Street, Cincinnati, OH

Friday, November 6, 2015 at 10:15 am
Patrick J. Hoban presents “Affordable Care Act” at 10:15 a.m. at the Ohio Conference for Payroll Professionals (OCPP) to be held at the Embassy Suites Hotel in Dublin, Ohio.

Friday, November 6, 2015 at 10:15 am
Michele L. Jakubs presents “FLSA/Time and Attendance Best Practices” at 10:15 a.m. at the Ohio Conference for Payroll Professionals (OCPP) to be held at the Embassy Suites Hotel in Dublin, Ohio.
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Wednesday, December 1, 2010

EEOC Releases Performance and Accountability Report for 2010 Fiscal Year Announcing Record Number of Discrimination Charges

By Stefanie L. Baker

In the fiscal year ending September 30, 2010, the Equal Employment Opportunity Commission (EEOC) received a record 99,922 private sector discrimination charges. Despite the record increase, the EEOC managed to keep its charge backlog at 86,338 pending charges. EEOC Chair Jacqueline Berrien attributes keeping its charge backlog down to increased training and 198 new hires in 2010. The new hires included 66 investigators and 8 mediators. These new staff members are expected to help process an additional 6,000 charges a year.

The EEOC reports that during the 2010 fiscal year, discrimination charges reached their highest level in the EEOC’s 45-year history. The previous record for number of discrimination charges in one fiscal year was 95, 402 charges filed during 2008. Despite the increase in charges received, the EEOC resolved a total of 104,999 charges in 2010.

During 2010, the EEOC recovered $319 million in monetary relief for private sector discrimination claimants. Of the $319 million, $142 million came from mediation resolutions. The EEOC participated in 9,370 mediations in 2010, indicating mediation is a favored track in resolving discrimination charges. The record number of 2010 mediations indicates a 10% increase from 2009 mediations.

The EEOC resolved 285 lawsuits in 2010, recovering $85 million dollars for discrimination claimants. Of these resolutions, 197 contained Title VII claims, 60 contained Americans with Disabilities Act claims, and 38 contained Age Discrimination in Employment claims. From these lawsuits the EEOC recovered:

     •$73.9 million in Title VII claims;
     •$5.2 million in ADA claims;
     •$2.8 million in ADEA claims; and
     •$2.9 million in claims involving more than one statute.

EEOC field units filed 250 new merit lawsuits in 2010. The majority of new lawsuits focus on Title VII claims. Of the 250 new lawsuits, 192 contained Title VII claims, 40 contained Americans with Disabilities Act claims, 28 contained Age Discrimination in Employment claims, and 2 contained Equal Pay Act claims.

The EEOC’s report indicates an increase and focus on its systemic initiative, which includes cases commonly known as “pattern or practice” cases. The agency has hired experts in statistics, industrial psychology, and labor market economics to work with district EEOC offices on large cases. The EEOC focuses on these complex cases because it allows the agency to examine employer practices that impact a large number of individuals. During the 2010 fiscal year, the agency conducted 465 systemic investigations. The EEOC expects the quantity of systemic lawsuits to steadily increase.
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Tuesday, June 26, 2012

EMPLOYMENT LAW QUARTERLY | Summer 2012, Volume XIV, Issue ii

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Indiana Prohibits Smoking in Places of Employment

by Ami J. Patel*

After a five-year battle, Indiana became smoke-free on July 1, 2012 joining thirty-nine other states with similar smoking bans. The Indiana ban prohibits smoking in public places, places of employment, and government vehicles. The new law defines “place of employment” broadly as “an enclosed area of a structure that is a place of employment.” In addition, the law prohibits smoking within eight feet of a public entrance to a “public place” or “place of employment.” However, employers may designate smoking areas that are located outside the employment structure and eight feet from all public entrances.

While the vast majority of Indiana employers are required to comply with the new law, some exceptions include bars, gambling facilities, and private clubs. All other Indiana employers must remove all ashtrays and smoking paraphernalia from their premises, unless the employers are displaying the ashtrays or other smoking paraphernalia for retail sale. Employers and operators must also post signs at each public entrance informing entrants that “no smoking is permitted within eight feet of any public entrance.” If a “place of employment” is also a “public place” – and many are – the owner, operator, manager, or official in charge must also: post conspicuous signs in the public place that read “Smoking is Prohibited by State Law” or other similar language; ask anyone smoking in violation of the Act to cease smoking; and cause anyone who refuses to cease smoking “to be removed from the public place.”

Under the new law, employers must inform current employees and applicants of the prohibition. Therefore, Z&R recommends that Indiana employers add the smoking prohibition to their employment applications and handbooks. The state law specifically authorizes local governments to enact more restrictive ordinances. Thus, employers must also comply with any more restrictive local ordinances if they exist. Violations of the state smoking ban include fines up to $1,000.

*Ami J. Patel has experience representing employers in all types of labor and employment matters. Ami also has experience assisting employers with state-specific compliance issues. Please contact Ami (ajp@zrlaw.com) at 216.696.4441 for any questions on Indiana’s smoking ban.

The Equal Employment Opportunity Commission Issues Guidance on Criminal Background Checks and Suggests Focusing on Individualized Assessments

by Patrick M. Watts

The Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance regarding the use of arrests and convictions in employment decisions. The EEOC last issued guidance on this issue over twenty years ago.

The EEOC enforces Title VII of the Civil Rights Act of 1964 (“Title VII”) which prohibits employment discrimination based on race, color, religion, sex, or national origin. Title VII does not list “criminal record” as a protected status against employment discrimination. Therefore, whether an employer’s reliance on a criminal record violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin.

The guidance describes the circumstances under which the use of arrest and conviction records in hiring may violate Title VII. Similar to prior EEOC guidance, the new EEOC guidance encourages the use of the Green factors. See Green v. Missouri Pacific Railroad Company, 523 F.2d 1158, 1160 (8th Cir. 1975). In Green, the court outlines factors employers should consider when making employment decisions based on an employee’s or applicant’s criminal history. The Green factors are:
  • The nature or gravity of the offense or conduct;
  • The time elapsed since the offense, conviction, and/or completion of the sentence; and
  • The nature of the job sought or held.
Employers should look at these factors to show that the exclusion of an applicant or employee for a criminal conviction is job-related and consistent with business necessity. A criminal background check resulting in a disparate impact (i.e., a neutral policy that has an adverse impact on a particular group) violates Title VII, unless the employer can show the exclusion is job-related and consistent with business necessity.

The EEOC suggests employers should conduct an individualized assessment when making employment decisions on criminal history.The new guidance focuses on how an employer can show the exclusion is job-related and consistent with business necessity. The EEOC discusses two circumstances in which an employer's criminal conviction policy will “consistently meet” Title VII's “job-related and consistent with business necessity” defense. According to the EEOC, employers can validate their use of background screening policies and practices or develop a targeted screen using the Green factors. If the employer develops a targeted screen, the employer must provide employees with criminal records an opportunity for an “individualized assessment.”

The guidance acknowledges that Title VII does not necessarily require an individualized assessment; however, the guidance strongly suggests that employers use an “individualized assessment” in these circumstances. The individualized assessment would consist of:
  • notice to the individual that he or she has been screened out because of a criminal conviction;
  • an opportunity for the individual to demonstrate that the exclusion should not be applied due to his or her particular circumstances; and
  • consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job-related and consistent with business necessity.
The individual may show that he or she was not correctly identified in the criminal record or that the record is not accurate. Other relevant individualized evidence could include:
  • the facts and circumstances surrounding the offense or conduct;
  • the number of offenses for which the individual was convicted;
  • the age of the individual at the time of conviction or release, as evidence suggests that recidivism rates tend to decline as ex-offenders’ ages increase;
  • any evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
  • the length and consistency of employment history before and after the offense or conduct;
  • rehabilitation efforts, including education or training;
  • employment or character references and any information regarding fitness for the particular position; and
  • whether the individual is bonded.
If an individual does not respond to the employer’s attempt to gather additional background information, the employer may make its employment decision without the information. Importantly, the EEOC does not mandate how much effort an employer must exert in order to meet its obligations under this guidance.

The EEOC offers best practice tips for employers that include:
  • Eliminating policies that impose an absolute bar to employment based on any conviction;
  • Training hiring managers about appropriate use of conviction history in hiring and promotion and separation;
  • Tailoring screening procedures to ensure that they are job-related and consistent with business necessity;
  • Prohibiting asking applicants for disclosure of convictions that are not job-related and consistent with business necessity; and
  • Keeping information about applicants’ and employees' conviction history confidential.
The new guidance is not legally binding. However, new guidance comes on the heels of heightened attention in this area on several fronts, including an employer’s recent settlement with the EEOC for over $3 million on a claim of disparate impact discrimination resulting from blanket exclusion of applicants with criminal records. With many employers conducting background checks and inquiring about conviction records, employers should take note of the new guidance. To that end, employers should review all policies and procedures which pertain to criminal background checks and make adjustments if inquiries into certain arrests and/or convictions are not job-related and consistent with business necessity. Employers must remain vigilant in training managers and recruiters on what types of criminal background inquiries are permissible. Employers also must remember to comply with various state and local laws that limit what an employer may ask and how it may consider criminal history.

Massachusetts Criminal Background Check Law Adds to the "Ban the Box" Requirement

by Stephen S. Zashin*

The Massachusetts Criminal Offender Record Information ("CORI") law created a new method and database for employers to access criminal records. CORI imposes a host of new obligations for employers. As previously reported by Z&R, part of the "ban the box" law became effective in 2010. The "ban the box" provision mandates employers remove all questions seeking information about an applicant's criminal record or criminal history on "initial written employment applications."

In addition to the "ban the box" requirement, Massachusetts employers must also maintain several CORI records and policies. The significant changes include:
  • Employer Access
    CORI data soon will be available to all employers via a new Web-based criminal background database, known as "iCORI."

  • Notification Requirements
    Employers must provide applicants and current employees with a copy of their criminal history reports before either questioning them about the reports or making adverse employment decisions based on the information therein. This requirement applies to all criminal background information, regardless of whether it is obtained through iCORI.

  • Record-keeping Requirements
    Employers that receive CORI data must obtain signed acknowledgment forms before conducting a search, and employers must keep the record for one year from the date of the request for information.

  • Dissemination Restrictions
    Employers may share CORI data only with employees that have a need to know the information. Employers also must keep a log of all persons with whom they share CORI data for a year after the date of dissemination.

  • Data Storage
    Employers are required to store hard copies of CORI data in locked and secured locations. Electronically stored data must be password-protected and properly encrypted.

  • Written Policy Requirements
    Employers that annually conduct five or more criminal background investigations must maintain a written CORI policy. This policy must indicate that the employer will notify applicants of any potential adverse decision based on CORI information, provide applicants with their CORI report and the employer policy, and provide information concerning the process for correcting a criminal record.
The law also provides for periodic audits of employers that request and receive CORI data and allows for fines of up to $5,000 for knowing violations of the law.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law, has experience representing employers in all types of labor and employment matters. Stephen also has experience assisting employers with state-specific compliance issues. Please contact Stephen (ssz@zrlaw.com) at 216.696.4441 for any questions on the new prohibitions under Massachusetts law.

Tread Lightly When Inquiring Into Employee Absences – Asking for a Doctor’s Note May Violate the ADA

by B. Jason Rossiter*

In U.S. Equal Employment Opportunity Commission v. Dillard’s, Inc., et al., the Southern District of California held that a company’s attendance policy which required an employee to submit a doctor’s note stating “the nature of the absence” and “the condition being treated” was an impermissible disability-related inquiry under the Americans with Disabilities Act, 42 U.S.C. § 12112(d)(4)(A) (“ADA”).

The ADA prohibits an employer from “making inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” However, an employer “may make inquiries into the ability of an employee to perform job-related functions.” See 42 U.S.C. § 12112(d)(4)(B).

Dillard’s, Inc. El Centro Store (“Dillard’s”) had an attendance policy that would not excuse an employee’s health-related absence unless the employee submitted a doctor’s note stating “the nature of the absence (such as a migraine, high blood pressure, etc…)” and “the condition being treated.” Dillard’s terminated any employee who accumulated four unexcused absences of any kind. Three separate employees experienced difficulty in getting health-related absences approved because the doctor’s notes they submitted did not state the medical conditions that led to their absences. After bringing their concerns to the Equal Employment Opportunity Commission (“EEOC”), the EEOC brought a suit against Dillard’s on behalf of 60 individuals, claiming these individuals also were subjected to Dillard’s allegedly unlawful attendance policy. Dillard’s rescinded the attendance policy in July 2007. However, the EEOC still pursued this case on behalf of the individuals affected under the policy from 2005-2007.

The EEOC defines a “disability-related inquiry” as a question that is likely to elicit information about a disability. For example, the EEOC allows an employer to ask questions about an employee’s general well-being, whether they can perform job functions, and about current illegal drug use. Here, however, the EEOC argued that requiring the employee to disclose the health condition was a “disability-related inquiry.” Dillard’s argued that the attendance policy did not violate the plain language of the statute.

The court relied on two court decisions to find that the attendance policy made impermissible inquiries into medical conditions. First, the court relied on Conroy v. New York Department of Correctional Services, 333 F.3d 88 (2d Cir. 2003). In Conroy, the court found that an inquiry regarding a “general diagnosis” may tend to reveal a disability violating § 12112(d)(4)(A). Likewise, in Indergard v. Georgia-Pacific Corporation, 582 F.3d 1049 (9th Cir. 2009) the court found a policy impermissible which required employees to submit to a physical capacity evaluation prior to returning to work from medical leave. The Indergard court stated that an employer could inquire “into the ability of an employee to perform job-related functions,” but that it could not require a medical examination unless such examination was job-related and consistent with business necessity. Based on Conroy and Indergard, the Court concluded that Dillard’s attendance policy, on its face, permitted supervisors to conduct impermissible disability-related inquiries under the ADA. In response, Dillard’s failed to show both job-relatedness and business necessity to know the nature of the employee’s medical condition.

Employers must remain vigilant, especially in light of recent amendments that make it easier for employees to be “disabled” under the law, that their absence policies do not make impermissible inquiries into health conditions. Employers must also train managers and human resources professionals on what types of questions constitute impermissible inquiries.

*B. Jason Rossiter practices in all areas of labor & employment law and has extensive experience representing employers in disability discrimination matters. If you have any questions about your attendance policy or whether an inquiry will be permissible, contact Zashin & Rich at 216.696.4441.

Equal Employment Opportunity Commission Clarifies that Title VII Protects Transgendered Individuals from Employment Discrimination

by Stefanie L. Baker

Earlier this year, the Equal Employment Opportunity Commission (“EEOC”) released a decision stating that Title VII sex discrimination claims include discrimination against transgender individuals. By definition, transgender individuals self-identify as a different gender from their biological sex at birth.

The Bureau of Alcohol, Tobacco, Firearms (“ATF”) denied Mia Macy, a transgender woman, a position as a ballistics technician after she announced she was transitioning from male to female. Ms. Macy had several conversations with the lab director who allegedly told her that the position was hers, subject to a background check. During the process, she informed the lab director of her transition. A few days later, she received an email stating that the job was no longer available due to budget restrictions. However, Ms. Macy later learned that the ATF hired someone else.

Ms. Macy filed a formal internal complaint with the ATF claiming “sex stereotyping” and “gender identity” discrimination. However, the ATF only accepted her claim “based on sex (female)” under Title VII as part of its complaint process. Ms. Macy then appealed to the EEOC, which serves as an appellate tribunal for final ATF decisions and the EEOC reversed the ATF’s final decision.

The EEOC determined that the term “sex” encompasses both the biological differences between men and woman, as well as gender differences. Title VII thus bars not just discrimination on the basis of biological sex, but also on the basis of gender stereotyping—targeting someone for failing to act and appear according to expectations defined by gender. The EEOC found that if an employer intentionally discriminates against an applicant or employee because he or she is transgender, such discrimination is by definition unlawful sex discrimination.

Employers should review their employment policies and practices and consider revising them to conform to the EEOC’s decision. In some instances, employers may have to create new policies. Some policies and/or procedures that may need to be updated include:
  • Equal Employment Opportunity non-discrimination and harassment policies;
  • Pre-employment screening policies;
  • Employee codes of conduct;
  • Dress codes and appearance policies;
  • Use of pronouns;
  • Procedures to change information, e.g., personnel records to reflect gender change identity; and
  • Policies regarding use of restrooms, locker rooms, and other gender-specific facilities.
As a result of the EEOC’s decision, transgender individuals who believe that they are victims of workplace discrimination may now file claims with the EEOC. While the EEOC’s decision is not binding on the courts, courts may give deference to the EEOC’s decision. Z&R recommends employers update any and all of the above-mentioned policies and procedures to ensure compliance.

Z&R Shorts

Soon To Be Expired Form I-9 To Remain Valid

The current Form I-9 is set to expire on August 31, 2012. The expiration date is on the upper right hand corner of the form. However, the U.S. Citizenship and Immigration Services (“USCIS”) announced earlier this month that the form would remain valid beyond this expiration date. As such, employers should continue to use the current Form I-9, until further notice from the USCIS.

American Arbitration Association University

George Crisci will be part of the panel presenting “Grievance Processing” on September 13, 2012, at the Cleveland Metropolitan Bar Association, 1301 East Ninth Street, Second Level, Cleveland, Ohio. To register go to www.aaau.org.

2012 Masters Series: Employment Law CLE seminar

Stephen Zashin will co-present “Wage/Hour Litigation” on September 18, 2012 at the Columbus Bar Association, 175 South Third Street, Suite 1100, Columbus, Ohio. To register go to www.cbalaw.org.

ACI’s 16th National Forum on Wage & Hour Claims and Class Actions

Stephen Zashin will be part of the panel presenting “Arbitrating Wage & Hour in the Wake of AT&T Mobility and D.R. Horton on September 28, 2012 at the Hilton San Francisco Financial District in San Francisco, California. To register go to AmericanConference.com/WageHourSNF.

49th Annual Midwest Labor and Employment Law Seminar

Stephen Zashin will be part of the panel presenting “Managing Cost of E-Discovery” on October 12, 2012 at the Hilton, Easton Town Center in Columbus, Ohio. To register go to www.ohiobar.org.

Health Care Reform… How will it affect you?

Pat Hoban is the keynote speaker for the FREE seminar and breakfast presented by Cedar Brook Financial Partners on Tuesday, October 16th, 2012 at 9:00am at Cedar Brook Financial Partners, 5885 Landerbrook Drive, Mayfield Heights, Ohio 44124. Seminar will take place in the Garage Level Conference Room
If you are interested in attending, please RSVP to Cassandra by Thursday October 11: cflanigan@cedarbrookfinancial.com or by phone 440.683.9240

Labor Law Seminar presented by Faulkner, Hoffman & Phillips, LLC

Jon Dileno will co-present “Grievance/Arbitration Processing Strategy” on October 29, 2012 at the FOP 67 Lodge Hall.

American Bar Association Section of Labor and Employment Law

6th Annual Labor and Employment Law Conference
George Crisci will be part of the panel presenting “One Year After Wisconsin and Ohio – The State of the Public Sector” on November 2, 2012, at the Westin Peachtree Plaza, 210 Peachtree St SW. Atlanta, GA. To register go to www.americanbar.org.
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Wednesday, November 2, 2016

EMPLOYMENT LAW QUARTERLY | Volume XVIII, Issue iii

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Not So Fast (Food): Ohio Employer Goes Too Far With Supersized Influence Over His Employees’ Voting Decisions

By Brad S. Meyer*

With a hotly debated election season upon us, everyone seems to have an opinion on the candidates and significant ballot issues. While political discussions are common in the workplace, Ohio employers cannot influence their employees’ votes.

More specifically, Ohio has a statute limiting an employer’s influence over how employees vote on Election Day. Ohio Revised Code 3599.05 makes it illegal for an employer or his agent or a corporation to:

print or authorize to be printed upon any pay envelopes any statements intended or calculated to influence the political action of his or its employees; or post or exhibit in the establishment or anywhere in or about the establishment any posters, placards, or hand bills containing any threat, notice, or information that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part, or other threats expressed or implied, intended to influence the political opinions or votes of his or its employees.

A violation of this statute is punishable by a fine of $500 - $1,000.

In 2011, the owner of a fast food restaurant violated R.C. 3599.05 when, in the month preceding the election, the employer enclosed a letter containing the company’s logo on it with each employee’s pay check that stated:

As the election season is here we wanted you to know which candidates will help our business grow in the future. As you know, the better our business does it enables us to invest in our people and our restaurants. If the right people are elected we will be able to continue with raises and benefits at or above our present levels. If others are elected we will not. As always who you vote for is completely your personal decision and many factors go into your decision.

The letter then listed the candidates the owner believed would help the business move forward.

At least one employee filed a complaint against the owner with local prosecutors. The Ohio Secretary of State investigated the claim and recommended charges against the owner. Ultimately, the owner pled no contest to a violation of R.C. 3599.05 and agreed to pay a $1,000 fine.

Accordingly, Ohio employers must understand that there are limits to the amount of influence they can exert over their employees’ choices at the ballot box. If an employer wishes to publish political opinions to their employees, they should consult counsel to help avoid violating the law.
*Brad S. Meyer practices in all areas of public and private labor and employment law. For more information on political speech in the workplace or other labor and employment questions, please contact Brad at bsm@zrlaw.com or 216.696.4441.



Elections and the Workplace: Employee Time Off for Voting

By Brad E. Bennett*

As Election Day approaches, employers will receive requests from employees for time off from work to go vote. As there is no federal law governing time off for voting, numerous states have enacted laws governing employee leave for voting. In the 29 states that currently have laws providing for voting leave, the requirements vary. For example, 21 of those states require employers to provide paid time off to employees to vote.

The following table summarizes the key aspects of state voting laws:
DOWNLOAD PDF OF TABLE


In addition to the state laws summarized above, employers also should know about any local ordinances relating to employee time off for voting. With Election Day fast approaching, employers should understand the validity of an employee request for time off to vote and prepare for the impact of any voting-related absences upon business operations.

*Brad E. Bennett practices in all areas of public and private labor and employment law. For more information on employee leave or other labor and employment questions, please contact Brad at beb@zrlaw.com or 614.224.4411.



EEOC Changes the Notice Employers are Required to Provide Employees Participating in an Employee Health Program

By Patrick J. Hoban*

The Equal Employment Opportunity Commission (“EEOC”) recently published final rules under the Americans with Disabilities Act (“ADA”) for employers who offer certain wellness programs that collect employee health information. Specifically, the EEOC detailed what type of notice employers must provide regarding the use of employee health information. According to the EEOC, the new rules ensure that Employee Health Programs (“EHPs”) “are reasonably designed to promote health and prevent disease, that they are voluntary, and that employee medical information is kept confidential.”

Generally, the ADA prohibits employers with 15 or more employees from discriminating against individuals on the basis of a disability. To prevent such discrimination, the ADA restricts employers with respect to obtaining medical information from employees and applicants. Notwithstanding the general restriction, however, the ADA permits employers to make certain inquiries of employees regarding their health and to conduct medical exams of employees when such requests are part of voluntary EHPs.

Voluntary EHPs encompass health promotion and disease prevention programs and activities offered to employees as part of an employer sponsored health plan or as a benefit of employment. The EEOC promulgated the new rules to guide employers who may offer incentives to employees to participate in wellness programs that require them to answer disability-related inquiries or undergo a medical examination.

Under the ADA, participation in an EHP must be voluntary. An EHP is voluntary if: (1) it does not require employees to participate; (2) it does not deny coverage under any of its group health plans or limit the extent of benefits (with some limited exceptions) due to non-participation; (3) it does not result in any adverse employment action or retaliation against any employees; and (4) it provides notice to employees regarding the use of their health information.

The new rules issued by the EEOC provide employers further guidance on the fourth prong of the voluntary test - the notice requirement. While the EEOC provides a Sample Notice for Employee-Sponsored Wellness Programs, employers are not required to use the EEOC sample. Under the new rules, an employer is required to provide employees with notice that: “(A) is written so that the employee from whom medical information is being obtained is reasonably likely to understand it; (B) describes the type of medical information that will be obtained and the specific purposes for which the medial information will be used; and (C) describes the restrictions on the disclosure of the employee’s medical information, the employer representatives or other parties with whom the information will be shared, and the methods that the covered entity will use to ensure that medical information is not improperly disclosed (including whether it complies with the measures set forth in the HIPAA regulations).”

After much debate, the EEOC declined to include a requirement that employees participating in EHPs provide prior written and knowing confirmation that their participation is voluntary. In making its determination, the EEOC sought to ensure that no employee unwittingly authorized the dissemination of confidential and protected information, while refusing to place unwieldy burdens on an employer. In order to balance those competing interests, the EEOC ruled that “a covered entity may not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information, or to waive confidentially protections available under the ADA as a condition for participating in a wellness program or receiving a wellness program incentive.”

The EEOC rules go into effect on the first day of the first plan year for benefits beginning on or after January 1, 2017. With open enrollments quickly approaching, it is important for employers to make sure they are familiar with the new EEOC rules. Employers can expect the EEOC and employee groups to enforce compliance with the new notice rules through litigation.

Employers also must understand that this is just one of the rules that govern EHPs. Implementation of these programs requires compliance with a host of laws and regulations, including but not limited to: HIPAA, Title II of GINA (also enforced by the EEOC), the Affordable Care Act and others.

*Patrick J. Hoban practices in all areas of employment and labor law. If you have questions about employee health programs or other employment and labor law issues, please contact Pat (pjh@zrlaw.com) at 216.696.4441.



Religious Discrimination on the Horizon: EEOC Targets Enforcement

By Drew C. Piersall*

In a series of moves, the Equal Employment Opportunity Commission (“EEOC”) recently demonstrated its intent to pursue religious discrimination claims more actively. In July, the EEOC released a fact sheet “designed to help younger workers understand their rights and responsibilities” under anti-discrimination laws. The EEOC also announced its improved coordination with the Department of Labor (“DOL”) to prevent religious discrimination among federal contractors and subcontractors.

Title VII of the Civil Rights Act of 1964 (“Title VII”) forbids religious discrimination. Specifically, the statute’s “disparate treatment” provision prohibits employers from failing/refusing to hire, discharging, or otherwise discriminating against an applicant/employee “because of” the applicant’s/employee’s religion. Title VII defines religion to include all aspects of religious observance, practice, and belief.

Religious disparate treatment claims often arise in the form of “failure to accommodate” allegations. Generally, to succeed on a failure to accommodate claim, the applicant/employee initially must prove that: (1) he/she holds a sincere religious belief that conflicts with a job requirement; (2) he/she informed the employer about the conflict; and (3) the employer discharged or disciplined the applicant/employee for failing to comply with the conflicting job requirement.

Title VII defines religious belief broadly. For example, one court acknowledged that Title VII provides atheists with the same protections as members of other religions and found a plaintiff’s atheistic beliefs sincere. See Mathis v. Christian Heating and Air Conditioning, Inc., 158 F. Supp. 3d 317 (E.D. Pa. 2016). There, the plaintiff’s atheistic beliefs conflicted with a job requirement to wear an I.D. badge that included a religious mission statement.

The United States Supreme Court recently relieved applicants/employees from demonstrating, in some cases, that the applicant/employee informed the employer of a conflict between the job requirement and religious belief. In EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), the Court held the employer does not need specific knowledge of the applicant’s/employee’s religion or need for accommodation in intentional religious discrimination cases. Rather, an employer who acts with the motive to avoid an applicant’s/employee’s religious practice or need for religious accommodation – even if based on nothing more than an unsubstantiated suspicion – may violate Title VII. An applicant’s/employee’s religion cannot be a “motivating factor” in the employer’s decision.

If an applicant/employee establishes a prima facie failure to accommodate claim, the employer must show that accommodating the employee would impose an undue hardship on the employer. Undue hardship means more than a de minimis cost. Historically, courts have considered accommodations that result in the following undue hardships: requiring an employer to pay overtime; requiring an employer to hire replacement employees; requiring an employer to make additional contributions to insurance and pension funds; requiring an employer to take action that compromises schedule or seniority systems; and requiring an employer to risk regulatory or criminal sanctions.

In addition, Title VII mandates that an employee cooperate with the employer’s attempts to provide a religious accommodation. Courts may be more likely to find undue hardship where the employee refuses to compromise. For example, a FedEx employee insisted that she keep her operations manager position and get all Saturdays off. The company showed such arrangement would have created a safety risk because the company needed all managers available every day during peak season to assist in loading and launching aircraft. The court found that allowing the employee not to work during peak season imposed an undue hardship. See Burdette v. Federal Express Corp., 367 Fed. App’x 628 (6th Cir. 2010).

Employers should address claims of religious discrimination and requests for accommodation carefully and on an individualized basis. In its Abercrombie & Fitch decision, the United States Supreme Court concluded Title VII does not demand mere neutrality with regard to religious practices. Rather, “it gives [employees seeking religious accommodations] favored treatment.” When evaluating accommodation requests, employers should evaluate carefully the costs of an accommodation, work with the employee to find a solution, and contact employment counsel with questions.

*Drew C. Piersall practices in all areas of employment and labor law. If you have questions about religious discrimination, accommodations, or the EEOC’s enforcement efforts, please contact Drew (dcp@zrlaw.com) at 614.224.4411.



Z&R SHORTS


Please join Z&R in welcoming Scott DeHart to its Employment and Labor Groups


Scott DeHart’s practice will focus on all areas of private and public sector labor and employment law and litigation. Scott graduated summa cum laude from New York Law School, where he focused his studies on labor and employment law. As a law student, Scott was selected as Champion of the NKU Grosse Moot Court Competition. Prior to joining Zashin & Rich, Scott pursued a career as a Human Resources practitioner, most recently as a Director of Human Resources at Columbia University. In that capacity, Scott ensured the effective design and administration of a broad range of HR programs and served on the university’s collective bargaining team.

Upcoming Speaking Engagements


Monday, November 7, 2016
George S. Crisci presents “The National Labor Relations Board – Obligations and Compliance” and “Other Employment Laws You Need to Know” at the National Business Institute’s Seminar on Human Resource Law from Start to Finish at the CMBA Conference Center, One Cleveland Center, 1375 E 9th St, Cleveland, Ohio 44114.

Friday, November 18, 2016
Jonathan J. Downes presents “FLSA – New Rules and Practical Solutions” at the CAAO Winter Conference during the 9:00 am – 10:30 am session. The conference takes place at the Embassy Suites Dublin, 5100 Upper Metro Place, Dublin, 43017.

Thursday, December 8, 2016
George S. Crisci will participate, as the Management Panelist, in the presentation “A View from the Chair of the National Labor Relations Board.” The featured panelist will be NLRB Chairman Mark G. Pearce. Patrick J. Hoban will participate, as the Management Panelist, in the presentation “Applying the NLRA to Employer Handbooks and Other Employer Policies.” The presentations will occur at 12:30 p.m. and 1:45 p.m., as part of the Ohio State Bar Association’s “National Labor Relations Board Update: Times and Laws are Changing” seminar, which will be held at the Ohio State Bar Association headquarters, 1700 Lake Shore Drive, Columbus, Ohio 43204.

For more information regarding this seminar, please contact Linda Morris – CLE Program Coordinator for the Ohio State Bar Association at 614-487-4408 or email at lmorris@ohiobar.org.
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