EEOC Continues to Aggressively Pursue Litigation Against Employers

By Kathleen Jennings (kjj@wimlaw.com)

Despite being well over a year into the new Republican administration, the EEOC shows no signs of slowing down its aggressive litigation efforts. In just the last week, the EEOC announced three multi-million dollar settlements of lawsuits that it brought against private employers.

  • On July 30, 2018, the EEOC announced that the SLS Hotel, operated by hotel, restaurant and nightlife company called “sbe”, will pay $2.5 million and provide other relief to settle the discrimination lawsuit brought by the EEOC. According to the EEOC’s lawsuit, black Haitian dishwashers were wrongfully terminated on the basis of their race, color, and national origin and were replaced by a staffing agency workforce of mostly light-skinned Hispanics. The terminated dishwashers worked in the kitchens of The Bazaar by José Andrés, Katsuya, and the Hyde Beach-all restaurant venues located at SLS Hotel, in South Beach.

    The dishwashers testified that their supervising chefs referred to them as “slaves” and reprimanded them for speaking Creole, even amongst themselves, while Hispanic employees were allowed to speak Spanish. The testimony also revealed that the black Haitian dishwashers complained to human resources about discrimination and about having a “racist” supervisor but, instead of addressing these complaints, the SLS Hotel fired the entire dishwashing department made up primarily of black Haitians, without providing them an opportunity to apply to the staffing agency before their termination.

  • On August 1, 2018, the EEOC announced that a U.S. District Court approved a consent decree between Alorica, Inc. and the EEOC for $3.5 million and remedial measures to resolve a sexual harassment lawsuit. According to the EEOC, male and female customer service employees were subjected to harassment, including a sexually hostile work environment, by managers and coworkers. The EEOC further alleged that the onsite human resources staff failed to properly address the harassment despite repeated complaints by employees.

     

    In addition to the monetary relief, Alorica agreed to significant injunctive relief in the form of a three-year consent decree, which includes the hiring of a third-party monitor; the creation of an internal equal employment opportunity consultant and internal compliance officer; and, sexual harassment training, including incorporating civility and bystander intervention training, for its employees. The company also agreed to revise its anti-discrimination and retaliation policies and procedures as well as maintain records of any future sexual harassment and retaliation complaints, audits, and reporting.

     

  • Also on August 1, 2018, the EEOC announced that Koch Foods, one of the largest poultry suppliers in the world, will pay $3.75 million and furnish other relief to settle a class employment discrimination lawsuit filed by the EEOC. According to the EEOC’s lawsuit, Koch subjected Hispanic employees and female employees to a hostile work environment and disparate treatment based on their race/national origin (Hispanic), sex (female), and further retaliated against those who engaged in protected activity. EEOC alleged that supervisors touched and/or made sexually suggestive comments to female Hispanic employees, hit Hispanic employees and charged many of them money for normal everyday work activities. Further, a class of Hispanic employees was subject to retaliation in the form of discharge and other adverse actions after complaining.

    In addition to paying the money, Koch Foods will take specified actions designed to prevent future discrimination, including implementing new policies and practices designed to prevent discrimination based on race, sex or national origin; providing anti-discrimination training to employees; creating a 24-hour hotline for reporting discrimination complaints in English and Spanish; and posting policies and anti-discrimination notices in its workplace in English and Spanish.

Note that in all of these cases, the employers did not admit to liability.

The Takeaway: The EEOC continues to file enforcement actions against employers, primarily in the areas of harassment and disability discrimination, which are among its enforcement priorities. One of the major downsides of an EEOC-filed lawsuit is that the EEOC almost always insists on a press release publicizing the amount of any settlement. This is in contrast with the settlements of most privately filed employment lawsuits, where the parties can usually agree to keep the amount of the settlement confidential.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment 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.

 

Today is the 28th Anniversary of the Americans With Disabilities Act (ADA)

By Kathleen Jennings (kjj@wimlaw.com)

The EEOC sent out a tweet to remind us that today is the 28th Anniversary of the signing of the Americans with Disabilities Act (ADA) by President George H.W. Bush.

A case filed by a pro se plaintiff in Alabama reminds us that a person does not have to be disabled to be protected from discrimination by the ADA; the ADA also protects an employee whose employer erroneously perceives him/her to be disabled. In the case of Ruggieri v. The City of Hoover, AL, Case No.: 2:18-CV-0476-VEH (Motion to Dismiss denied July 24, 2018), the plaintiff alleged that his violated the ADA when it required him to attend psychiatric counseling. The plaintiff contended that he was the only one in his department required to do so, thereby showing it was inconsistent with job requirements and business necessity. The ADA provides that a covered employer cannot require a medical examination and cannot make 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.

The City moved to dismiss on a number of procedural grounds. Among the arguments made by the City was that the plaintiff’s EEOC Charge (which generally provides the factual basis of a subsequent lawsuit) was deficient because the plaintiff did not allege that he was disabled. The district court rejected this and other arguments by the City. While giving the Plaintiff some latitude because he was not represented by an attorney, the court noted that the ADA protects employees who are not disabled. Further, the section of the ADA that prohibits medical examinations unless they are job-related and consistent with business necessity is not limited only to persons who are actually disabled.

This case is in the early stages, so we don’t know all of the facts. Nevertheless, it appears that the City could have handled the situation a lot better. If an employer wants an employee to undergo a physical or mental examination, it needs to have a good job-related reason, with supporting documentation, and it should share that reason with the employee so there are no misunderstandings.

This case also reminds us that an employer cannot blithely refer an employee to “anger management counseling.” Ideally, if the employer believes that an employee has demonstrated behaviors in the workplace that warrant a referral to anger management counseling, the employer should attempt to persuade the employee to attend such counseling voluntarily. However, if the employer requires an employee to attend anger management counseling as a condition of employment, this requirement may be construed as a “medical examination” under the ADA, and the employer must have a job-related reason consistent with business necessity to support it. Consult with experienced employment counsel to make sure that your company is not violating the ADA.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment 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.

 

Supreme Court Nominee Kavanaugh Has Record of Pro-Business Decisions

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

On Monday, Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals was nominated to the U.S. Supreme Court. Kavanaugh is a graduate of Yale Law School who clerked for retiring Justice Kennedy (at the same time as Justice Gorsuch). He was appointed to the D.C. Circuit in 2003 by George W. Bush and was confirmed after 3 years.

If confirmed (which is probable), Kavanaugh would bring a pro-business approach to the highest court. Some of the labor and employment issues where his vote could influence the direction of the law are the following:

  • Harassment of the basis of sexual orientation. As discussed in previous blog posts, there is currently a conflict in the Circuits regarding whether Title VII covers harassment on the basis of sexual orientation. I predict that with Kavanaugh in the majority, the Supreme Court will narrowly interpret Title VII and find that it does not cover harassment on the basis of sexual orientation.
  • Joint employer test. The legal issue of whether one business is the joint employer of another business’s employees is an important one for businesses that subcontract out some work to other businesses. Under the Obama administration, the parameters of the joint employer relationship were expanded. In his writings for the D. C. Circuit, Kavanaugh has taken a narrow view of joint employer issues. Should the issue of what constitutes a joint employment relationship come to the Supreme Court, it is probable that Kavanaugh will continue to use that narrow approach.
  • Mandatory arbitration of employment disputes. In the most recent session, the Supreme Court upheld the validity of class action waivers. It is likely that the issue of mandatory arbitration agreements for individual employment disputes could come before the Supreme Court next term. If so, it is probable that the Court, including Kavanaugh, will uphold the use of mandatory arbitration agreement for individual disputes.
  • Deference to administrative agency interpretations and rulemaking. In his writings, Kavanaugh does not appear to be a big fan of administrative agencies, and he appears to be disinclined to show deference to their interpretations of their regulations.

The takeaway: The addition of Kavanaugh to the Supreme Court will result in more favorable decisions for employers and businesses.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment 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.

 

Certain Employers Required to Electronically Submit Form OSHA 300A By July 1

By Kathleen Jennings (kjj@wimlaw.com)

Some companies may not be aware that effective July 1, 2018, they are required to report certain information electronically to OSHA pursuant to the Improve Tracking of Workplace Injuries and Illnesses final rule.

Establishments with 250 or more employees that are required to keep injury and illness records, as well as establishments with 20-249 employees in certain high-risk industries must submit information from their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Note that covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

In April, OSHA announced that affected employers in state-plan states that have yet to adopt the electronic recordkeeping rule are nevertheless required to submit their 300A data by the July 1 deadline. (These states include California, Maryland, Utah, Washington, and Wyoming.) Employers in those states are required to use federal OSHA’s Injury Tracking Application (ITA) to submit their data.

Some states, such as Washington and Wyoming, have disputed federal OSHA’s authority to require establishments under state plan jurisdiction to follow the federal requirements, and OSHA has admitted that it does not have the authority to cite employers in those states that fail to submit their 300A data by the July 1 deadline. Nevertheless, employers in state-plan states are advised to submit 300A data to federal OSHA by the July 1 deadline.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment 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.

Happy Birthday, FLSA!

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

Today, the Fair Labor Standards Act (FLSA) turns 80 years old. In 1938, the FLSA, signed into law by Franklin Delano Roosevelt, established a federal minimum wage, the 40-hour workweek, overtime, and limits on child labor. Think about what the world of work must have looked like before those measures were implemented.

Moreover, think about how the world of work has changed since 1938. Back then, most workers clocked in and out of work on timeclocks usually actual time cards. Now, some workers simply sign in and out of work on an app on their phones. Indeed, the new “gig economy” is presenting challenges to the continued relevance of the FLSA, and some updates to the law are going to be necessary in order to keep up with the changing workplace. However, as demonstrated by the Obama administration’s attempt to expand the salary threshold for the overtime exemption, any changes are likely to draw opposition and pushback.

Members of the House and Senate marked the FLSA’s birthday by introducing bills to make farmworkers eligible for overtime pay. Under the current law, farmworkers are not eligible to receive overtime pay. The new bill is unlikely to pass this year but could gain support if Democrats win control of either the House or Senate following November’s midterm elections.

Here’s how your company can celebrate the FLSA’s birthday: review your exempt employees and their duties to make sure that they are correctly classified. And remember: simply paying an employee a salary does not automatically make the employee exempt.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment 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.

 

What They Can’t See Might Hurt You

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

Is your company’s website covered by Title III of the Americans With Disabilities Act? If so, is it accessible to persons with visual disabilities? Have you ever even thought about it? Take a lesson from Hooters and give your website a checkup.

This week, the U.S. Court of Appeals for the Eleventh Circuit revived a lawsuit filed by a vision-impaired individual under the Americans with Disabilities Act demanding that the Hooters restaurant chain make its website accessible for those with vision impairment. Hooters had urged dismissal of the case on the ground that it had already prepared and implemented a remediation plan to come into ADA compliance in response to a different lawsuit. While the district court below agreed with Hooters, the 11th Circuit Court of Appeals held that the remediation plan does not render the second lawsuit moot.

Website accessibility lawsuits are on the rise and need to be on your company’s radar. More companies are receiving demand letters and/or lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws. In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. The majority were filed in New York and Florida (the Hooters cases, discussed above, were filed in Florida, as was a major case against Winn-Dixie).

The basic questions that you need to ask to determine if your website is covered by Title III of the ADA are:

  1. Does your website engage in commercial activity for the benefit of the general public; and if so
  2. Will the law treat your website as a public accommodation, or as the service of a public accommodation?

At present, the parameters of what constitutes “commercial activity” are unclear. On one end of the spectrum is the company website that is purely informational or educational in nature; that website is not likely to be covered by Title III’s accessibility requirements. However, a website that sells goods or services directly to the public may be regarded either as a sales or service establishment in its own right, or as a service of such an establishment, and may be covered by the ADA or comparable state laws. Furthermore, a website that does not actually sell any goods or services but engages in some form of commercial activity may still be subject to the ADA or a comparable state law if it facilitates sales.

In addition to the public accommodation issues, companies also need to be aware of lawsuits filed by applicants challenging online applications as being inaccessible to vision impaired persons. Most of those suits are being filed in California, and we will see how the courts handle them. Keep in mind that the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations. Title III, the public accommodation standard, generally requires (with exceptions) that businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. In contrast, the prohibition against discrimination on the basis of disability in employment requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation. The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

Because there is a lack of clear regulations on the issue of website accessibility, and with no regulations coming from the Department of Justice in the near future, website accessibility lawsuits are likely to increase, and it’s going to be like the “wild, wild west” until courts can sort out some of the legal issues. In the meantime, it would be a good idea to consult with counsel about your company’s potential exposure to these types of lawsuits.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment 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.

A Signature Can Be Worth Thousands of Dollars

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

There is a lot of discussion about the utility and enforceability of arbitration agreements to resolve employee disputes with their employers. As we noted in a recent blog post, last month, the U.S. Supreme Court held that employment contracts that contain arbitration clauses and class action waivers are enforceable. Employers find these agreements attractive because arbitration tends to be faster and less expensive than court litigation. However, a recent case out of the 5th Circuit reminds us that an employer seeking to enforce a written arbitration should not overlook a small but important detail: the signatures of the parties to the agreement.

In Huckaba v. Ref-Chem, LP, No. 17-50341, (5th Cir. June 11, 2018), the 5th Circuit Court of Appeals reversed the district court’s judgment compelling arbitration. Why? Because the express language of the agreement at issue required for it to be signed by both parties and because it was undisputed that Ref-Chem did not sign the agreement. That’s right, the company did not sign the agreement it was seeking to enforce.

Whether or not all parties must sign a written agreement for it to be binding is a matter of state contract law. The 5th Circuit interpreted the agreement at issue under Texas contract law. In support of its decision, the Court noted that the arbitration agreement contained: (1) a statement that “[b]y signing this agreement the parties are giving up any right they may have to sue each other;” (2) a clause prohibiting modifications unless they are “in writing and signed by all parties;” and (3) a signature block for the employer, Ref-Chem. Thus, the Court concluded, this express language clearly indicated an intent for the parties to be bound to the arbitration agreement by signing. The agreement also identified the parties in the first line as “[t]he organization referred to above (‘Employer’) and the Employee, whose signature is affixed hereto.” The Court found that this clause made clear the parties’ intention that the employer would sign the agreement. (The Court also acknowledged that Texas courts have held that a signature block by itself is insufficient to establish the parties’ intent to require signatures).

What did the absence of this one signature cost the company? The company probably spent thousands of dollars in attorneys’ fees briefing this issue at the District Court and then at the Circuit Court. Now the former employee has the opportunity to pursue her claims in court, which is going to cost the company even more money. Expensive lesson.

The takeaway: Know and understand your agreement. If you are not sure who should sign it, ask your attorney.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment 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.