Fifth Circuit Considers Whether Sexual Orientation is Covered By Title VII–In A Case Filed By A Heterosexual

By Kathleen J. Jennings (kjj@wimlaw.com)

The issue of whether discrimination on the basis of sexual orientation is protected by Title VII is under consideration by several Circuit courts and may one day be decided by the U.S. Supreme Court. A case before the Fifth Circuit Court of Appeals has an interesting twist: the lawsuit was filed by a heterosexual married female employee who was terminated due to a post on Facebook objecting to transgender bathroom use. [Bonnie O’Daniel v. Industrial Service Solutions, et al, Docket No. 18-30136].

Ms. O’Daniel, an HR employee of Plant-N-Power Services, Inc. in Louisiana, made a Facebook post that she described as follows: “The post included a photo array of a man (or possibly a transgender woman) wearing a dress at Target[, a retail store]. The post expressed [O’Daniel’s] views on an ongoing public debate, specifically her discontent with the possibility of this individual being permitted to use a women’s bathroom and/or dressing room at the same time as [O’Daniel’s] young daughters.”

The President of Plant-N-Power Services, Inc., who is a member of the LBGTQ community, saw the post, and Ms. O’Daniel was disciplined and ultimately discharged. (Yet another cautionary tale about posting controversial things on social media).

Ms. O’Daniel alleged that she was terminated on the basis of her sexual orientation—heterosexual, and in retaliation for complaining that she was discriminated against on the basis of her sexual orientation (heterosexual). The District Court dismissed the lawsuit, finding that Title VII does not protect employees from discrimination in the basis of sexual orientation, and Ms. O’Daniel appealed to the Fifth Circuit.

The EEOC and several LBGTQ advocacy groups have filed Briefs arguing that Title VII does prohibit discrimination n the basis of sexual orientation. So the irony here is that a heterosexual ex-HR employee who publicly posted her objections to transgender bathroom use may be the person who convinces the Fifth Circuit Court of Appeals to recognize sexual orientation as a protected status. We’ll keep you posted on this.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Some Things Are Better Left Unsaid, At Least In An Email

By Kathleen J. Jennings (kjj@wimlaw.com)

A case out of Pennsylvania deals with an issue that keeps HR professionals up at night: emails giving direction to a supervisor with regard to handling the discipline of a long-time employee. In these emails, the HR manager advised the employee’s supervisor supervisor to follow every step of the company’s progressive discipline policy, even though company policy did not require him to do so. The HR manager also said that because the employee in question had been working for the company for more than 20 years and was in the “over 40 protected class,” all steps should be taken to avoid the risk of “a situation where this [could] potentially drag out longer with complications.”

The employee, who was eventually terminated, filed a lawsuit for age and disability discrimination. In that lawsuit, the employee’s attorney argued that the HR manager’s email was direct evidence of age-related bias. [In a discrimination case, direct evidence of discrimination is extremely harmful to the employer because it essentially shifts the burden of proof.]

The Court rejected that argument, instead finding that the emails showed that the employer was trying to avoid creating grounds for a potential age discrimination claim by the employee by skipping a step in its progressive discipline program. The Court also found that the employee could not prove that she was terminated because of her age or disability. Rather, she was terminated due to documented problems with her job performance.

The takeaway: There is a big evidentiary gap between acknowledging that an employee is over the age of 40 and proving that such knowledge equals discriminatory motive. Nevertheless, some things are better left out of an email or written communication (that is not covered by attorney-client privilege), and saying that “Employee is in a protected class and might sue us if we are not careful” is probably one of them. Although the Judge did not find the email in question to be direct evidence of discrimination, the employer had to expend resources fighting that argument. Sensitive matters such as possible legal action by an employee should be confined to written communications with counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

No-Match Letters Are Coming Back—Are you Ready?

By Kathleen J. Jennings (kjj@wimlaw.com)

The Social Security Administration has announced that it will resume sending “no-match” letters to employers starting in 2019. [The SSA stopped sending “no-match” letters back in 2012.]

What is a “no-match” letter? It is a written notice issued by the Social Security Administration (SSA) to an employer, usually in response to an employee wage report, advising that the name or Social Security number (SSN) reported by the employer for one or more employees does not “match” a name or SSN combination reflected in SSA’s records. The letter cautions employers against taking any adverse employment action against a referenced employee based solely on receipt of the letter, and explicitly states that the letter makes no statement about the referenced employee’s immigration status. Rather, the letter simply reports an apparent error in either the employer’s records or SSA’s records, and seeks the employer’s and, if necessary, the employee’s assistance in conforming those records.

What action should an employer take upon receipt of an SSA no-match letter or other notice of a no-match? To confirm that a reporting or input error is not the cause of a no-match, an employer, with the assistance of the referenced employee, should confirm that the name and SSN reported accurately reflects the referenced employee’s name and SSN. If no error is discovered, the employer should then advise the referenced employee to contact the local SSA office to address the reported no-match. An employer should not use the no-match letter or other no match notice by itself as the reason for taking any adverse employment action against the referenced employee. In addition, employers should not use the receipt of a no-match letter or other no-match notice (or the fact that an employee raises any objection to the employer’s no-match response procedures) as a basis to either retaliate against the employee or otherwise subject the employee to heightened scrutiny. Doing so may violate the anti-discrimination provision of the Immigration and Nationality Act (INA), or other state or Federal equal employment opportunity or labor laws. While not required to do so, an employer may schedule (and document) periodic meetings or other communications with the employee during the resolution period to keep abreast of the employee’s efforts to resolve the no-match, and to determine whether the employee needs more time to resolve the no-match than initially contemplated.

Employers should not jump to conclusions when they receive these letters. If an employee’s name and SSN don’t match SSA’s records, this does not necessarily mean the employee is not authorized to work. There are many possible reasons for a no-match letter, many of which have nothing to do with an individual’s immigration status or work authorization. Because of this, an employer should not assume that an employee referenced in a no-match letter is not work authorized and should not take adverse action against the referenced employee based on that assumption. Such action could subject the employer to liability for discrimination under the antidiscrimination provision of INA. When in doubt, consult with counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

OSHA Announces a New Attitude Toward Worker Safety Incentive Programs

By Kathleen Jennings (kjj@wimlaw.com)

Last week, the Department of Labor announced that it is reversing the safety incentive programs guidelines issued during the Obama administration. What does this mean for employers? It means that employers can offer incentives to employees, such as pizza parties, cash bonuses, or other prizes, as incentives for days without reported injuries or accidents in the workplace. According to the DOL, it believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.

OSHA states that incentive programs can be an important tool to promote workplace safety and health. One type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible under § 1904.35(b)(1)(iv). Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

A statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, be adequate to ensure that employees actually feel free to report, particularly when the consequence for reporting will be a lost opportunity to receive a substantial reward. An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

Safety incentive programs have been criticized by some as creating a disincentive for employees and supervisors to report workplace accidents, injuries, near misses or other incidents. No one wants to be that guy who reports the incident that keeps his whole department from getting a prize or party. Another concern is that failure to report incidents, even minor incidents and near misses, defeats the whole purpose of a proactive safety program, which is to generate as much information as possible on trends so that steps can be taken to curb future problems. Thus, the Obama administration frowned on such programs and discouraged them.

Now that the restrictions on safety incentive programs are relaxed, companies should use care in implementing such programs so that they do not discourage employees from reporting legitimate safety issues. Before implementing any kind of safety incentive program, a company should have a comprehensive safety program in place that creates a culture of safety. A safety incentive program is just one small piece of that comprehensive program.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Impact of #Metoo? The Number of Sexual Harassment Charges Filed With the EEOC in FY 2018 Has Increased

By Kathleen J. Jennings (kjj@wimlaw.com)

In case you were wondering whether the #Metoo movement has resulted in an increase in the number of sexual harassment allegations, the EEOC’s most recent report suggests that it has. Yesterday, the EEOC announced preliminary FY 2018 sexual harassment data. According to the preliminary data, in FY 2018:

•    The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50 percent increase in suits challenging sexual harassment over fiscal year 2017.

•    In addition, charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017.

•    Overall, the EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.

The EEOC also states that over 9,000 employees and supervisors in the private, public and federal sector work forces participated in its Respectful Workplaces trainings this past fiscal year. An additional 13,000 employees participated in EEOC’s anti-harassment compliance trainings.

The takeaway: The issues of sexual harassment and sexual assault continue to be discussed quite vigorously in the media. This public discussion increases the likelihood that some employees may come forward and complain about actions or comments that they previously dismissed either because they did not recognize them as harassment or they thought that nothing would happen if they complained about them. Regardless of how long ago the conduct complained about may have occurred, a company must investigate every complaint of harassment in the workplace. The amount of time that has passed between the alleged conduct and the complaint may be a factor in the company’s determination regarding the merits of the complaint, but it should not be a reason to ignore a complaint.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

OSHA Audit Recommends More Inspections for Amputations and Serious Injuries, But That’s Unlikely to Happen Anytime Soon

By Kathleen J. Jennings (kjj@wimlaw.com)

The U.S. Department of Labor Office of Inspector General (OIG) has issued the results of an audit of OSHA’s fatality and severe injury reporting program. The main conclusion: OSHA needs to take steps to prevent underreporting of fatalities and injuries, and ensure employers correct identified hazards. The audit bases this conclusion on the following findings:

• OSHA had no assurance employers reported work-related inpatient hospitalizations, amputations, and losses of an eye. Estimates show employers do not report 50 percent or more of severe injuries. Moreover, OSHA did not consistently follow its policy to issue a citation when an employer failed to report work-related fatalities and severe injuries within the specified timeframes.

• For an estimated 87 percent of employer investigations, OSHA lacked justification for its decision to allow employers to perform an investigation, or closed investigations without sufficient evidence employers had abated the hazards that had caused the accident. Furthermore, OSHA did not monitor any employer investigations to ensure accuracy and completeness of the information reported.

By way of background, in January 2015, OSHA made significant changes to employer reporting requirements for work-related fatalities and severe injuries. OSHA’s revised regulations require employers to report all work-related fatalities, inpatient hospitalizations, amputations, and losses of an eye within specific timeframes; and encourage employers to investigate these types of incidents and abate the hazards identified to prevent future accidents.

One of the audit’s recommendations is for OSHA to conduct inspections on all Category 1 incidents (a fatality, two or more in-patient hospitalizations, emphasis programs [such as amputation prevention], and imminent danger). Is this likely to happen any time soon? Probably not; OSHA simply does not have sufficient personnel to investigate every serious workplace injury.

The decision as to whether the report of a Category 1 injury will result in an OSHA inspection is within the discretion of the Area Director, so the probability of an OSHA inspection following such an injury will depend upon the Region where an employer operates. As a practical matter, when an employer reports a serious injury to OSHA, it should be ready for an OSHA inspector to show up at the facility.

Pro tip: We’ve said it before, and we’ll say it again: a company has the right to have its counsel present for an OSHA inspection. We recommend that company counsel be involved as soon as a serious workplace injury occurs so that counsel can manage OSHA.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

The North Carolina Department of Labor Says that Employers Can Fire Employees Who Do Not Show Up for Work During a Hurricane. That Does Not Mean It is A Good Idea.

By Kathleen J. Jennings (kjj@wimlaw.com)

In North Carolina, a major hurricane is not necessarily a good excuse for employees to miss work, at least according to the North Carolina Department of Labor.

This is what the North Carolina Department of Labor website says:

Does my employer have the right to make me come to work during adverse weather conditions?

Yes. Since an employer does not have to have an adverse weather policy at all, the employer can simply inform its employees that they must report to work whenever the business is open regardless of the weather conditions or road conditions. With very few employment law exceptions (discussed below), an employer can make staying at work or reporting to work during adverse weather a condition of employment.

And it does not matter if a ‘state of emergency” has been declared:

What if the governor declares a “state of emergency” and asks everyone to stay off the roads?

It does not matter if state officials have declared a state of emergency and are advising people to stay off of the roads. The decision to stay open or to close, for its employees to remain at work or leave early, or for its employees to report to work or not during adverse weather conditions, is entirely up to each individual employer to make on its own.

Just because an employer can require employees to work during a hurricane does not mean that it should. If it is unsafe for employees to travel or even remain in the area (due to an evacuation order), the employer that requires employees to report to work anyway may be violating public policy and placing people under unnecessary risk of harm. Placing employees in unnecessary danger may also violate OSHA’s General Duty clause. And finally—it just looks bad. Unless the business is one that provides important public services (such as a hospital or utility), let employees stay home (or evacuate) and be safe.

Pro tip: If your business does not have a written adverse weather policy, it is time to implement one. At a minimum, an employer should have a policy regarding how it will communicate with employees about any closing of the business due to adverse weather so employees do not make unnecessary trips.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.