In a previous post on July 22, 2020, we reported on the Equal Employment Opportunity Commission’s (“EEOC”) Pilot Program which modified certain aspects of the EEOC’s mediation program. In October, 2020, the EEOC announced proposed changes to its conciliation process.  Conciliation differs from mediation in that mediation provides both parties an opportunity to mediate and potentially resolve a charge of discrimination shortly after it is filed and before the EEOC begins its investigation. Conciliation is a voluntary alternative to litigation which arises after the EEOC has investigated a charge and determined reasonable cause exists that an employer has discriminated against an employee.

Between 2016 and 2019, the EEOC conciliation process effectively resolved only 41.23% of discrimination charges where a reasonable cause finding was made against an employer. In an effort to improve the conciliation process, the EEOC is proposing amendments that will increase the amount of information available to an employer to make settlement of charges more likely.  In particular, a brief summary of the EEOC’s proposed amendments are as follows:

  • The EEOC will provide employers with a written summary of known facts and non-privileged information the EEOC relied on in making its findings. This includes identifying aggrieved employees for whom the EEOC is seeking relief.  Additionally, the EEOC will have discretion to provide detailed information to an employer such as identities of alleged harassers or supervisors and if a class action is being pursued, the estimated size of the proposed class.
  • The EEOC will provide a summary to the employer of the legal basis for a finding of reasonable cause. If there was any doubt that reasonable cause existed to believe discrimination occurred, the EEOC will explain how reasonable cause existed despite this information. The EEOC may also provide a response to any defenses raised by an employer.
  • The EEOC will provide employers with a basis for a request for monetary relief including any calculations underlying the proposal and will provide the employer at least 14 calendar days to respond to the initial settlement proposal.

The EEOC’s proposed rules are subject to comment from interested parties and have not yet been adopted.  If the EEOC implements these new amendments, employers are likely to have a better understanding as to how the EEOC reached its determination, as well as its rationale for any relief it is seeking on behalf of an aggrieved employee. Previously, the EEOC was under no obligation to provide this information, which often left employers with insufficient information to determine if a settlement should be considered prior to the EEOC filing litigation against the employer.

Recently, one federal court of appeals validated an employer’s decision to discharge an employee for posting a racially charged political statement on social media. In particular, the employee (a white Nashville emergency dispatcher) made a Facebook post related to President Trump’s victory following the 2016 election that included racial slurs. The employee subsequently removed the post within 16 hours. However, by that point, the employer had received numerous complaints and initiated an investigation. Ultimately, the employer discharged the employee for violating three rules: 1) her behavior reflected discredit upon the employer 2) her conduct was unbecoming of a Nashville employee and 3) her Facebook profile disclosed that she was a Nashville employee, but failed to include a disclaimer that her views were hers alone and not those of her employer. The employee subsequently sued, claiming the government violated her First Amendment rights.

Upon review, the Court held that the employer’s “interest in maintaining an effective workplace with employee harmony that services the public efficiently outweighs [the employee’s] interest in incidentally using racially offensive language in a Facebook comment.” The Court reached this conclusion based upon several factors.

First, the employee’s speech disrupted the harmony of the office. As a result of the employee’s post, the employer conducted additional diversity training and brought counselors into the office to meet with employees. In addition, the Court also considered that the employee failed to acknowledge any wrongdoing or show remorse. The employee exhibited no concern for her colleague’s feelings, called them hypocrites, and refused to apologize in her disciplinary hearing.

Second, the employee’s speech had a detrimental impact on the close working relationships within the office. Given the stressful nature of the dispatcher job, team dynamics and reliance upon one another played a critical role in the agency’s success. However, given the employee’s comments, some co-workers questioned whether they could rely on her and whether she would fairly assist African Americans in providing dispatch services.

Third, the employee’s comments detracted from the employer’s mission. The employer considered it vital for employees to conduct themselves in an unbiased manner and to demonstrate integrity, reliability, and honesty. Here, the employee described her employer on her Facebook profile and maintained a public profile. Were that not the case, the Court’s analysis may have been different. Moreover, the employee’s comments exhibited a racial bias and included no disclaimer that the views were hers alone.

For all these reasons, the Court dismissed the employee’s First Amendment claims. It is important to note that the First Amendment does not apply to private employers. However, the Sixth Circuit Court of Appeals’ jurisdiction covers Ohio, Michigan, Kentucky, and Tennessee. Therefore, particularly for employers in those states, this decision highlights factors that employers may consider when evaluating troublesome employee social media posts. The full decision can be viewed here.

On Saturday, September 26, 2020, President Donald Trump announced Amy Coney Barrett of the Seventh Circuit Court of Appeals as his nominee to replace the late Justice Ruth Bader Ginsburg. A conservative justice serving for the Court of Appeals covering Illinois, Indiana and Wisconsin since 2017, Judge Barrett aligns herself as more of a textualist judge, or one who reads and interprets the law as is written. Many associate this style of judgeship with the late conservative Supreme Court Justice Antonin Scalia. Putting politics and interpretations aside, what does this appointment mean for employers? Well, it sounds promising.

During her three years on the Seventh Circuit, Barrett’s employment law decisions have resulted in significant victories for employers. Some of her key employment decisions are outlined below.

The ADEA: Dale Kleber v. CareFusion Corporation:

In Kleber, a 58-year-old attorney applied for a senior in house position, requiring three to seven years of relevant legal experience. Kleber, who had more than seven years of experience, was passed over for a 29-year-old applicant who met, but did not exceed, the experience requirement. In limiting the Age Discrimination in Employment Act (“ADEA”), Barrett sided with the majority, holding that while the ADEA does protect employees from disparate impact age discrimination, such protections do not extend to job applicants.

Federal Arbitration Act and the “Gig Economy”: Carmen Wallace v. Grubhub Holdings, Inc. and Grubhub Inc.:

In Wallace, and writing for the Court, Justice Barrett upheld the mandatory arbitration clauses signed by plaintiffs (i.e., Grubhub drivers). The court found that the drivers were not exempt from the Federal Arbitration Act (“FAA”) under the exemption for “any other class of workers engaged in foreign or interstate commerce” because, simply, Grubhub drivers often do not personally transport goods across state lines. Therefore, the Grubhub drivers were required to resolve their dispute in the agreed upon arbitration forum.

ADA: James Graham, Jr. v. Arctic Zone, LLC:

In Graham, the employee sued under the Americans with Disabilities Act (“ADA”) alleging that his employer, an ice rink, failed to accommodate his disability and discharged him because of his disability. In regard to the failure to accommodate claim, Judge Barrett reasoned that the employee failed to uphold his end of the interactive process because he did not inform his employer that his new work assignment to sharpen skates actually required him to stand for long periods of time, which violated his medical restriction to work in a seated position. Further, the Court reasoned that the employers’ reasons for Graham’s termination, including a Zamboni accident and behavioral issues, were not pretext for disability discrimination.

Title VII: Agüero v. Bd. of Trustees:

In Agüero, the employee alleged that she was discriminated against on the basis of her race and national origin in violation of Title VII when the University of Illinois chose not to renew her employment contract due to unsatisfactory performance reviews. The court ruled that the employee could not establish that she was performing to her employer’s expectations. Specifically, although the employee presented positive performance reviews from previous years, the court reasoned that “any positive feedback that Agüero received at a different time and in a different position is irrelevant.”

Barrett’s confirmation hearings are set to begin October 12. Barrett’s confirmation over the next several weeks or months will surely carry political firepower and debate. However, if confirmed, employers may likely have obtained a new ally on the Supreme Court.

As the November election draws closer, employers are facing the daunting challenge of keeping peace among employees with differing political affiliations. One approach to this challenge involves simply banning certain types of political expression in the workplace. While this approach can work well if it is done correctly, it can cause significant legal issues if it is not. As with all employment issues, proper planning is the key to success.

One way to start taking political disputes out of the workplace is by prohibiting hats, buttons, clothes and banners supporting specific political parties or candidates. It is perfectly legal for private sector employers in Ohio to prohibit all of these items, despite misguided ideas by some employees that they have First Amendment rights in a private sector workplace.

Private sector employers who decide to prohibit political hats, buttons, clothes and banners should take the following steps:

  • Develop a specific, written policy that identifies the items that are prohibited and the consequences for violating the policy;
  • Provide the policy to all employees and clearly explain its terms;
  • Identify a point person responsible for fielding and addressing reports regarding violations of the policy; and
  • Perhaps most importantly, apply the policy consistently, since applying a policy like this inconsistently could lead to claims of discrimination and unfair treatment, and will almost certainly lead to disputes among the impacted employees.

Employers in unionized settings should also determine whether they are required to bargain with their union before implementing the policy. Failing to bargain with a union when required can result in unfair labor practice charges before the National Labor Relations Board.

The key message with a policy of this nature should be that each employee is entitled to support whatever party or candidate they wish to support, but work time is for working, not for campaigning.

Ohio House Bill 81, first introduced back in February of 2019, contains several significant changes regarding workers’ compensation law. Signed by Governor Mike DeWine on June 16, 2020, the bill is set to become law on September 15, 2020. The changes brought about by the bill include a reduced statute of limitations for Violations of Specific Safety Requirements (VSSR’s), a change in determining the life of a claim, a limitation in employers’ ability to contest state-fund settlements, and, perhaps most significantly, the codification of the voluntary abandonment defense to the payment of temporary total disability (TTD) compensation.

Beginning with VSSR’s, these are an additional award available to injured workers whose injuries or occupational diseases are the result of their employer’s violation of one or more of the specific safety requirements found in the Ohio Administrative Code. The statute of limitations for a VSSR application had been two years from the date of injury, even after the statute of limitations for filing the underlying claim itself was reduced from two years to one year in 2017. House Bill 81 remedies this discrepancy, bringing the statute of limitations for a VSSR down to one year, as well.

Regarding the life of an allowed claim, the language of the current version of Ohio Revised Code section 4123.52 states that a claim expires five years after the date of the last payment of compensation or payment of medical benefits. House Bill 81 contains a change to the language of that section, substituting “last medical services being rendered” for “payment of medical benefits.” Though the change is subtle, the overall effect will be to shorten the active life of claims, as payment of medical benefits always comes after the medical services are rendered—sometimes significantly later.

For state-fund settlements, a new subsection added to Ohio Revised Code section 4123.65 now prohibits employers from contesting settlement of a state-fund claim when it is both out of the employer’s experience for impacting its annual premiums and when the claimant is no longer employed by the employer. When both of these conditions are met, a claimant will now be able to file an application for settlement of the claim without the employer’s signature.

Finally, House Bill 81 codifies the common law doctrine of voluntary abandonment, a doctrine that has been the subject of many often-conflicting court opinions over the years. Expressly stating that it is “the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment,” a new subsection added to Ohio Revised Code section 4123.56 provides, “If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive [TTD] compensation.” While the language is certainly more concise than the virtually innumerable quotes that can be pulled from the various court opinions on the subject, only time will tell whether application of the doctrine is accordingly simpler and more straightforward. On its face, however, this change does appear to be favorable to Ohio employers, arguably broadening the availability of the voluntary abandonment defense to payment of TTD compensation.

Under Section 707 of Title VII of the 1964 Civil Rights Act (“Title VII”), the U.S. Equal Employment Opportunity Commission (“EEOC” or “the Commission”) has the authority to bring a suit when “a person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by” Sections 703 and 704 of Title VII, which prohibit discrimination and retaliation. The Commission for many years has used Section 707 to bring pattern and practice, or systemic discrimination, suits against employers without any charge of discrimination having been filed against the employer. On September 3, 2020, the Commission issued an opinion letter in which it reversed interpretations it had previously used to bring such suits against employers.

In its opinion letter, the Commission addressed two questions: 1) does a pattern or practice claim under Section 707(a) require allegations of alleged discrimination or retaliation; and 2) does a claim under Section 707 require the normal pre-suit requirements be satisfied before the EEOC can file suit? The Commission determined that the answer to both questions is yes.

In reaching the conclusion that Section 707(a) does not provide a freestanding violation of Title VII, the EEOC reached the same conclusion as the Seventh Circuit Court of Appeals in its 2015 opinion, EEOC v. CVS, 809 F.3d 335, wherein the EEOC had brought suit against CVS regarding severance agreements that the Commission thought could deter employees being separated from filing charges of discrimination. In siding with the rationale of the Seventh Circuit, the Commission stated that, “Based on the relevant statutory language and the caselaw, Section 707(a)’s “pattern or practice of resistance” does not create an independent basis for a lawsuit untethered to other violations of Title VII. Instead, any suit that the Commission brings pursuant to Section 707(a) must be based on an alleged pattern or practice of conduct that violates either Section 703 or Section 704.”

In addressing the second question, the EEOC stated in its opinion letter that claims under Section 707 are subject to Section 706’s pre-suit requirements, which means that before the EEOC can bring a pattern and practice suit, a charge of discrimination must have been filed and the Commission must have attempted to conciliate the claim before filing any suit.

While the lone Democratic member of the Commission criticized the opinion letter, it is being viewed by business groups as helping employers and keeping the EEOC from unilaterally bringing actions to challenge otherwise lawful and legitimate employment practices.

Recently, the Ohio Supreme Court held that employers can use the direct-observation method of drug testing, without violating an employee’s privacy rights, provided that the employee consents to the test. The court also noted that an employer can terminate an employee for refusing to consent to that drug test.

In that case, Lunsford v. Sterilite of Ohio, L.L.C., employees were selected for drug testing and each employee executed a “Consent and Release.” At the time of executing the release, the employees did not knowing that their urine sample would be collected under the direct-observation method – where a person of the same sex visually observes the employee produce the urine sample. The employees were notified that the direct-observation method would be used when they reported for their urine collection. The employees all proceeded to take the drug test without making objections, but, subsequently, sued their employer for invasion of privacy.

The court held that the employees could not sustain claims for invasion of privacy as each employee consented to a direct-observation drug test, no employee objected to the test, and each employee signed the “Consent and Release.”

Practically, this means that employers can use direct-observation drug testing provided that the employee consents to the test. The employee’s consent should be obtained in a written release or written waiver prior to administering the drug test. Importantly, no employee should be forced to take a drug test following their objection to such test; however, if an employee refuses to consent to a drug test, he or she can be terminated.

Please contact a member of the Labor and Employment Group for any questions you may have concerning drug testing of employees, or your drug testing policy.

In 2019, McDonald’s Corporation fired its CEO Steve Easterbrook after it learned he had an inappropriate relationship with a subordinate employee. The relationship came to light when the subordinate employee reported that she engaged in a consensual relationship with Easterbrook that involved explicit text messages and photographs, but no physical contact.  Naturally, McDonald’s investigated the allegations. The investigation included interviews and an examination of Easterbrook’s iPhone and an iCloud account. Easterbrook admitted the allegations, however, no additional misconduct was revealed. Consequently, McDonald’s board terminated Easterbrook “without cause,” meaning he stood to collect approximately $40 million in stock options and other compensation. Easterbrook’s severance arrangement with McDonald’s stated that if the company later determined that the employee was dishonest and cause for termination existed, the company had the right to recoup the severance payments.  Fast forward to the summer of 2020: this is exactly what happened.

More specifically, other employees came forward and it was learned Easterbrook not only had a sexual relationship with a different subordinate employee, but that Easterbrook awarded that employee a significant six-figure stock grant. McDonald’s conducted a second investigation which included searching Easterbrook’s corporate emails (which were not searched previously).  This investigation revealed dozens of nude or sexually explicit photos of various women, including company employees. The email search appeared fairly simple. Among other things, McDonald’s searched for the name of the employee who was alleged to have had an affair with Easterbrook. The emails were apparently not previously located during the first investigation because Easterbrook deleted them from his iPhone. McDonald’s has now sued Easterbrook to recover severance compensation paid or owed to him based on his lies, concealment and fraud.

McDonald’s predicament points to a simple lesson: when conducting an investigation of employee misconduct, in addition to a forensic search of electronic devices, a search of an employee’s work-related emails is imperative. McDonald’s likely could have avoided suing Easterbrook had this been accomplished during the first investigation.

Earlier this week, a decision by the U.S. District Court for the Southern District of New York vacated several key aspects of the U.S. Department of Labor’s (“DOL”) final rule implementing the Families First Coronavirus Response Act (“FFCRA”). (For those who are unfamiliar with the FFCA, an overview can be found here.) The decision stems from a lawsuit filed against the DOL by the State of New York, which claimed that the DOL exceeded its agency authority based on the way in which it interpreted the FFCRA.

The decision, known as State of New York v. U.S. Department of Labor, et al. (“NY v. DOL”), specifically invalidates provisions relating to the following issues:

  1. Employees who are on furlough. The FFCRA grants paid sick leave to employees who are “unable to work (or telework) due to a need for leave because of” any of six enumerated COVID-19-related reasons. The DOL’s final rule excludes from coverage those employees whose employers “do … not have work” for them since, the DOL reasoned, they are not on leave because of COVID-19, but due to lack of work.  The Court found the DOL’s explanation “unreasoned” and invalidated it. Thus, under the Court’s decision, employees who are on furlough and who also have qualifying reasons for leave may be entitled to FFCRA benefits.
  2. Employees of “healthcare providers.” With respect to the FFCRA’s healthcare provider exemption, the DOL’s final rule broadly defines “health care provider” based on the nature of the employer’s business, rather than the employee’s specific job function. Thus, the Court reasoned, DOL’s definition would include, for example, an English professor employed by a university with a medical school. The Court disagreed with that reading, concluding instead that the FFCRA “requires at least a minimally role-specific determination.” While it is unclear exactly which roles the Court believes should be covered by the exemption, the Court did make clear that non-medical personnel are not exempted.
  3. Intermittent Leave.   Although the DOL’s final rule permits employees to take paid leave “intermittently”— in separate blocks of time rather than one continuous period)— they may do so only with their employer’s consent (and only in limited circumstances). The Court upheld intermittent leave restrictions for leave that implicates an employee’s risk of COVID-19 transmission, e.g., when an employee or immediate family member contracts the virus. But for other qualifying reasons, such as needing to care for children whose school or childcare facility is closed, the Court struck down the DOL’s rule and found the employer-consent requirement invalid.
  4. Documentation Prior to Leave Approval Under the DOL’s final rule, employers may require employees to provide their employers with documentation before taking foreseeable paid leave. The Court invalidated that requirement. Instead, an employee who provides requisite notice prior to taking leave will be entitled to leave pay upon the submission of appropriate documentation, even if that documentation is submitted at a later time.

The NY v. DOL decision will likely be appealed to the Second Circuit Court of Appeals, and it could be overturned. Moreover, it is unclear whether other federal district courts, if given the opportunity to weigh in, will agree with the decision. Nonetheless, unless and until further guidance is issued, employers who act contrary to this decision face significant risk. Employers are thus advised to follow the new interpretation of the FFCRA and notify employees of these changes

Yesterday, in a long-awaited decision in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the National Labor Relations Board (“Board” or NLRB”) gave employers a clearer pathway to disciplining employees who engage in abusive workplace conduct — including profane, racist, and sexually harassing remarks — even when the conduct coincides with concerted activities otherwise protected by the National Labor Relations Act (“NLRA” or the “Act”).

The General Motors decision reinstates a 40-year old previous test known as Wright-Line. Under this test, an employer’s disciplinary decision generally will be deemed lawful unless (a) there is sufficient evidence that the decision was motivated by the employer’s animus toward the employee’s protected concerted activity and (b) the employer fails to show that it would have made the same disciplinary decision even absent that activity.

In reinstating Wright-Line, the Board overturned tests from prior rulings, including several Obama-era decisions, that focused on the setting in which the protected activity took place and, as a result, shielded employees’ obscene, racist, and sexually harassing workplace speech from appropriate disciplinary consequences. General Motors ends this unwarranted protection. The decision also provides much-needed clarity for avoiding conflicts between the NLRA and various state and federal anti-discrimination laws.

For employers, the case provides the basis for modifying workplace civility rules and permits a return to standards of conduct as specified in employer workplace policies and work rules.  Despite the change established in General Motors, employers nonetheless must continue to be mindful of the obligation to avoid in engaging in retaliatory action for employees’ concerted activity that is protected under Section 7 of the Act. However, the Board’s expanded utilization of the Wright-Line standard should make that avoidance much easier on a going-forward basis.