Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Probability, manipulation, and random drug testing

Posted in Discrimination, Drug Testing

Is that “random” drug test selection really random?

Many employers — particularly, those in the transportation industry — use third party vendors to do the random selections for federally mandated drug and alcohol tests. I think it’s a great idea, because it prevents employees from claiming that they were selected for “random” testing in a not-very-random process.

Pennies.flickrCC.AlexSchreyer

“Heads up!” “Happy tails!”

Generally, the employer will provide to the vendor a list of the eligible employees without any information about race, sex, national origin, or any of those other protected categories that can cause a problem. The third party feeds the data into a program, and the program does its proprietary algorithm thingy and spits out the names of the lucky individuals who get to be tested each period.

What could be easier? Or less subject to legal challenge?

Well, a federal magistrate judge in California has denied summary judgment to a transportation employer in a race discrimination case* brought by an African-American supervisor who felt that he’d been “randomly” selected too many times. He’d been selected three times in nine months, which is indeed a lot.

*The discrimination claim was brought under the California Fair Employment and Housing Act, not Title VII.

But if you know anything about “random selection,” you know that this sometimes happens. If you flip a coin 100 times, you may get heads 50 times and tails 50 times. But you may also get heads 100 times. (Well, ok, maybe 55 times?) In any event, the same idea applies with random selection for drug tests: Sometimes the same individual will be chosen multiple times while a co-worker may escape altogether.

If the testing entity doesn’t even know the races of the individuals, how can the selection be discriminatory? The judge in this case apparently based his decision on the fact that a white manager (who I don’t believe had anything to do with selections for random drug tests) allegedly made comments about the plaintiff’s “player-mobile” and “pimpmobile.” But the real killer, I think, was the fact that a white female who should have been in the testing pool was left out and did not remember having been tested since 2009.

(In the company’s defense, other white employees were apparently in the testing pool, and the company said that the omission of the white female was a clerical error. But the judge wasn’t buyin’ it. He said that a jury should decide whether the employer “manipulated” the pool.)

Which reminds me of another statistical principle: garbage in, garbage out. Employers, make sure that your drug testing rosters are complete, correct, and current. Otherwise, you may not have the defense that the selections were truly random.

Image credit: From Wikimedia Commons, Creative Commons license, photo by Alex Schreyer.

Is this new harassment decision the end of the world for employers?

Posted in Harassment, Retaliation

Are harassment and retaliation lawsuits all going to the jury now? Are employers doomed? Are the plaintiffs’ lawyers popping the champagne corks? Is the EEOC dancing for joy?

The employment law world is abuzz about last week’s racial harassment/retaliation decision from my own U.S. Court of Appeals for the Fourth Circuit. (Many thanks to an attorney friend who emailed a copy to me the day the decision came out.)

The majority opinion in Boyer-Liberto v. Fontainebleau Corp. said that

SkyIsFalling.flickrCC.KAZVorpal

Oh, no!

*One or two uses of a racial slur could be “severe” enough for a harassment issue to go to a jury

*The harasser may be a “supervisor” — even if he or she really is not — if he or she was in a position of influence.

*An employee’s complaint about inappropriate workplace behavior can be “legally protected” even if the behavior hasn’t quite reached the “severe” level required for a valid harassment claim.

That’s my “executive summary.” If you want details, here’s the decision – all 100 pages of it, including the dissents. (You’re welcome.)

I admit that this decision is not great for employers, but I don’t think it’s the end of the world. Let’s do a “before and after.”

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Can we stop with the age-based stereotypes?

Posted in Discrimination

Is “digital native” the latest code term for “young”?

A hot topic for the past few days, after an article on the subject appeared in Fortune, has been whether it’s discriminatory for an employer to specify in recruiting that it’s seeking to hire “digital natives.” A “digital native” is someone who was born into the digital world, which supposedly means people born in 1990 and later.

(People born in 1990 are old enough to have jobs?)

Everybody else is a “digital immigrant” – we had transistor radios or Walkmans or Discmans, and hi-fis, and Bell Telephones with rotary dials. Shoot, our TVs weren’t even in color, much less “smart.”

Reportedly, the happening employers want “natives,” not “immigrants.”

(Is that national origin discrimination?)

This digital native/immigrant stuff originally came from an article written in 2001 by Marc Prensky, “an internationally acclaimed thought leader.” Mr. Prensky argued that educators should reach the younger generation, not by using old-fashioned methods like books and logic and lectures, but by using instructional video and computer games. Mr. Prensky was fair and unbiased, and could be completely trusted, because he himself was CEO of a company that sold instructional video and computer games.

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Proposed overtime rule has been sent to OMB

Posted in Wage-Hour

Secretary of Labor Thomas Perez announced today that the U.S. Department of Labor has submitted a proposed rule on the white-collar FLSA overtime exemptions to the federal Office of Management and Budget, which means that the proposed revisions to the overtime regulations could be made public before long.

Although the specifics are not known at this time, the proposed rule is expected to make it more difficult for NailBiter.flickrCC.RochelleHartmanemployers to claim that certain salaried workers are exempt from the overtime requirements of the Fair Labor Standards Act. This could happen in two ways: (1) by raising the minimum weekly salary necessary to qualify for an exemption from its current level of $455 a week, or (2) by raising the percentage of time that an employee must spend performing “exempt” job duties before the employee qualifies for the exemption. (Either one of these changes, or both, could be made.)

The proposed rule is in response to a memorandum issued by President Obama on March 13, 2014, directing the Secretary to “update” the current regulations. According to a White House fact sheet issued at the time, the current salary threshold “has failed to keep up with inflation, only being updated twice in the last 40 years and leaving millions of low-paid, salaried workers without these basic protections.”

The salary threshold was last increased in 2004, during the Bush Administration.

We will keep you posted!

Image Credit: Flickr, Creative Commons license, by Rochelle Hartman.

EEOC rolls out “Digital Charge” program for private employers

Posted in Uncategorized

Thanks to my law partner Jill Stricklin, who has this news about the EEOC’s new pilot program. Jill is an employment litigator in Constangy’s Winston-Salem Office and was also just named to the 2015 North Carolina Business Legal Elite for employment attorneys.

The EEOC began use of a new “Digital Charge” pilot program last Friday in the Charlotte, North Carolina, and San Francisco, California, field offices for employment discriminationJill Stricklin charges filed against non-federal employers. The EEOC has already implemented this digital system for complaints filed by federal employees.

Under the “Digital Charge” process, an employer will no longer receive the usual forms informing it that a charge of discrimination has been filed against it. Instead, an employer will receive just a one-page letter entitled “Notice of Charge of Discrimination” that will include a link to view the entire charge online via a secure portal. This specific portal, which is shared between the employer and the EEOC, is to be used by the employer not only to view the full charge of discrimination, but also to submit electronically its initial documents to the EEOC, including notices of appearance, requests for extension of time, supporting documentation, and the employer’s position statement.

Because this new pilot program has not been well-publicized (it is not currently on the EEOC’s own website), it is especially important for employers to be aware of this new process, so that they can respond to such notices in a timely fashion. The EEOC’s plan is that on June 1, respondents in the jurisdictional areas of the Indianapolis, Phoenix, Detroit, Denver, and Seattle field offices will begin using the “Digital Charge” pilot program, with the rest of the country following suit this fall.

Did he quit, or was he fired? Constructive discharge quiz!

Posted in Discrimination, Harassment

Some employers really, really hate to fire employees. That doesn’t mean they won’t do it – but they’ll do just about anything to avoid calling it what it is.

Shovel Art.flickrCC.TonyAlter

“You should usually call a spade a spade.”

A few months ago, I wrote about “bogus RIFs” – when an employer tries to avoid “firing” an employee by claiming it’s really a “reduction in force.”

There’s another kind of “alternative” separation called a constructive discharge.

Under federal law, a “constructive discharge” occurs when the employer deliberately makes working conditions so intolerable that a reasonable person in the employee’s position will feel compelled to resign. It can also include a forced resignation. In the eyes of the law, a constructive discharge is the same as an out-and-out firing, and sometimes it’s worse.

The U.S. Supreme Court agreed this week to decide when exactly the statute of limitations begins to run on a constructive discharge claim.

Since constructive discharge is hot right now, it must be time for a quiz! As always, the answers are provided, so there’s no pressure.

Are you ready to test your knowledge? Set? GO!

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Michael J. Shershin, Jr., March 2, 1936-April 7, 2015

Posted in Uncategorized

Many of our long-time clients and friends remember our former law partner Mike Shershin, a labor practitioner. Mike died earlier in April after a short illness. We offer our condolences to Mike’s wife of 41 years, Martha, and to the rest of his family and friends. The following is a statement from Neil Wasser, Chairman of our firm’s Executive Committee:

It is with deepest sympathy, that I inform our Constangy family that Mike Shershin, one of the long-time partners in our Firm, has passed away. Mike worked actively in the Atlanta office from 1966 until 2004 when he went on an of-counsel basis and moved with his wife Martha to Laurel, Mississippi. Mike truly loved our Firm and remained connected with many of us – following the developments at the Firm and always offering support and encouragement regarding our growth over the years. He was a brilliant Board attorney and a mentor to a lot of young associates in the Firm. He probably was the definition of the term “prepared” when it came to his NLRB work or arbitration cases. For every case he handled there was a well organized color coded binder, oftentimes multiple binders, highlighted in yellow. Mike served as our Operations Partner, and along with a small core of lawyers, oversaw the business of our Firm for many years. As an associate here in the Atlanta office, I can say that Mike had an amazing knack for calling with an assignment on the “one day” when you might have left work a little early. Mike worked hard, always put the Firm’s interests first, and was a good friend to so many lawyers here. He will be missed.

Mike’s full obituary is available here.

 

EEOC transgender case in Detroit will go forward

Posted in Civil Procedure, Discrimination, Gender Identity Discrimination

As our readers know, the EEOC filed two lawsuits last fall against private employers, alleging discrimination against transgender individuals: one case against a medical practice in Florida, and the other against a funeral home operation in the Detroit area.

And as I reported last week, the Florida case settled for $150,000 plus some training and other non-monetary terms.EEOC Logo

Meanwhile, the defendants in the Michigan case filed a motion to dismiss the EEOC’s lawsuit, and their motion was denied on Wednesday. Judge Sean Cox rejected the EEOC’s position that “gender identity” discrimination was a protected category under Title VII but will still allow the case to go forward on a theory of “sex stereotyping,” which the Supreme Court has said is a violation of Title VII. Judge Cox’s decision contains an excellent discussion of the sex stereotyping issue.

The allegations in the Michigan case are straightforward. The EEOC claims that Amiee Stephens was a funeral director/embalmer for the defendants since 2007. In 2013, she announced that she was beginning the transition from male to female, planned to present as a female, and requested understanding. Shortly afterward, she was terminated “because ‘what she was proposing to do’ was unacceptable.” The EEOC also alleges that the funeral home provided a clothing allowance to male, but not female, employees.

Employers should be aware that a “motion to dismiss” is filed at the earliest stages of a lawsuit and is based on nothing other than the allegations in the lawsuit and applicable law. At this very early stage, the court is required to assume that all of the allegations in the lawsuit are true, and the employer is not allowed to present any evidence in its defense. If the allegations — even if true — don’t create a valid legal claim, then the suit can be dismissed. Otherwise, the parties proceed with the litigation.

Denial of a motion to dismiss does not mean that the allegations in the lawsuit actually are true or that the employer will not win at a later stage.

Hey – that EEOC wellness rule isn’t half bad

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Genetic Information Non-Discrimination Act, GINA, Retaliation

NOTE: As I breathlessly reported last week, the EEOC has issued its long-awaited proposed rule on employer wellness programs and the Americans with Disabilities Act. (Here is a nicer copy than the one that was available then.) Brian Magargle, who knows a lot more than I do about the Health Insurance Portability and Accountability Act and the Affordable Care Act, and I are working together on a “multidisciplinary” overview of the proposed rule. Meanwhile, here is my summary of the proposed rule.

Nurse Practitioner.flickrCC.Doug

“This won’t hurt a bit.”

What pressing issue does this proposed rule address? For the history of the ADA/wellness controversy, go here, here, and here.

Is the proposed rule good for employers, or bad? Pretty good overall. The EEOC has, for the most part, proposed that providing “incentives” for employees to participate in wellness programs (both rewards and penalties, which we’ll call “carrots” and “sticks”) will be all right as long as the employer complies with the limits in the HIPAA/Affordable Care Act. In other words, incentives to that extent would, for the most part, not make the wellness program “involuntary” for ADA purposes. Which means that medical inquiries made in connection with such a wellness program will generally not violate the ADA.

One catch: The wellness program would have to be associated with a group health plan (either insured or self-insured).

Another catch: The EEOC proposals don’t exactly match the HIPAA/ACA rules, but they’re reasonably close.

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