Header graphic for print

Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Top 5 Interviewer Mistakes

Posted in Employee Hiring

I see a lot of posts focusing on mistakes that applicants make in an interview, but in my line of work, I see the consequences of what happens when employers make mistakes in interviews.  A mistake can be so easily made that could lead to a lawsuit by the applicant or losing a qualified candidate.

I was reminded of this by my own interview experience last week.  We were interviewing summer associate candidates last week and I asked one candidate what has been the biggest challenge so far in law school.  The candidate responded by asking “Biggest challenge in law school or in life?”  Although I was curious to know the answer to the “in life” question as there seemed a reason that it was brought up, I quickly realized no good could come of that question.

For all I knew, the biggest challenge involved fleeing a hostile dictatorship, dealing with a terminally ill child, or being the victim of a crime.  These may seem like extreme examples but are all things that relative strangers have told me over the years (thankfully not in an interview situation) after I asked what I thought was an innocuous question as I tried to learn more about a new acquaintance.  As these thoughts flashed quickly through my mind, I responded to the applicant, “Let’s just focus on law school.”

38335948_s

So, what are some common mistakes I’ve seen interviewers make that lead to losing candidates or worse, legal liability?

  1. Saying something discriminatory in the interview.
  2. Saying something that could be perceived as discriminatory — this may seem like a regurgitation of #1, but in my experience, it is rare that people say something outright discriminatory in an interview.  Instead, it is comments that are made about protected classes that could be perceived as discriminatory that get interviewers in trouble.  For example, an applicant notes on his resume that he is fluent in Spanish and happens to have a Hispanic last name.  It is perfectly fine for the interviewer to ask the applicant questions about how proficient he is in Spanish.  It is not acceptable for the interviewer to say, “I see from your last name that you are Hispanic. You must have learned Spanish from your parents, would you feel comfortable translating complicated written documents into Spanish?”  The interviewer should have just asked about the translation and said nothing else.
  3. Being distracted or checking emails during an interview – I think some hiring managers got a little spoiled by the economic downturn of a few years ago.  In the aftermath of the subprime mortgage crisis, there was a glut of qualified people suddenly thrust into the labor market due to lay-offs.  Candidates had limited options and were much more likely to take jobs that were not ideal simply to have a job.  As the market has improved, candidates have more options as to where they want to work.  Interviewers have to realize that they need to sell the applicant on working for the company just as much as the candidate needs to sell the interviewer on why he or she is right for the job.
  4. Promising Anything – until a final decision is made as to who is going to be hired and at what salary, no promises should be made that the employee is going to get the job or that a particular salary or benefit will be offered.
  5. Being negative about Human Resources — I have heard tales from friends who have interviewed with companies that the hiring managers grouse about Human Resources during the interview.  It usually comes up in the context of “I really like you, but I do have to get HR approval.  If it were up to me, I’d hire you now but they have to meet you just to sign off on the hire. It’s really silly, but they make us do it.  They can be really slow.  Expect to hear from them in about two weeks.”  Human Resources is responsible for addressing employee relations issues in the workplace, including complaints of harassment and discrimination.  Comments like these make HR seem ineffective and unnecessary, which plants a seed in an applicant’s head that HR is not the place to go to resolve disputes.  This may mean that complaints go unaddressed and discontentment festers until it erupts in a major problem.

I’m sure if I thought about it, I could come up with more examples of interviewer mistakes.  Do you have more examples?  We’d love to hear from you.

NLRB’s “Refined” Joint-Employer Test: Beware the Outsourced Employee

Posted in Employee Hiring, Employee Termination

38552358_sIn a highly anticipated decision, the NLRB today departed from three decades of an accepted standard for joint employment status and issued a new test that makes it far more likely that, even if a company does not directly employ an individual, it may be liable for employment torts and other encumbrances. (See Browning-Ferris Industries, 362 NLRB No 186).

In this particular action, Browning-Ferris Industries of California, Inc., utilized the services of numerous employees by way of an outside staffing firm.  This is a common practice, as almost 3 million workers were temporarily placed with American companies in 2014.  Prior to today, a company utilizing such services was only considered a joint-employer only if it had “direct control” over working conditions.

Under the new standard, which the board said was necessary due to generational and technological changes in the workplace, a company is a joint employer if it exercises “indirect control over working conditions or if it reserves the authority to do so.”  This implicates two huge groups:  companies who utilize staffing services and franchisers.

The practical import of the decision is that these companies, who previously enjoyed immunity from discrimination and harassment suits, workers compensation, and other benefits obligations, will have to completely revamp the treatment of such employees.  This will require things like handbook revisions, harassment training for outsourced employees, and an understanding that outsourced workers, who often come and go quickly, most likely will have to treated as in-house employees.

With the currently constituted Board in place for at least two more years, keep a look out for upcoming decisions that explain more specifically what does and does not consitute “indirect control over working conditions.”  We will certainly do so.

 

Come Join Me for the Webinar “Drafting Severance and Confidentiality Agreements Amid New EEOC, NLRB and Now SEC Scrutiny”

Posted in Employee Termination, Equal Employment Opportunity Commission

43369264_sI am pleased to be a co-presenter at this webinar on September 9, 2015.  The EEOC and NLRB have been challenging severance provisions that they feel may stop an employee or former employee from cooperating with a charge filed with the agency.  The SEC also has recently been asking companies to provide copies of their separation agreements as part of its investigation of alleged wrongdoing.

We will discuss these recent challenges, as well as identify contract provisions that have been labeled problematic and provide practical drafting tips to avoid the wrath of these agencies.

If you would like to attend this webinar, you can register by clicking this link.  You’ll want to make sure you use this link as I can offer attendees 50% off the normal registration fees.

Hopefully, you can join us!

The Dreaded Litigation Hold

Posted in General Employment Discrimination, General Employment Matters

If you groaned when you saw the words “litigation hold,” then you are in good company.

38665679_sI have been enjoying the reemergence of Bloom County by Berkeley Breathed, so maybe this is why this image is fresh in my mind.  When I hear litigation hold, I now immediately think of Binkley’s anxiety closet and images of the Giant Purple Snorklewacker mixed with sanctions orders.  (If you do not have the slightest idea to what I am referring, check out Bloom County on Facebook).

We spend a lot of time on this blog trying to provide employers with information to avoid litigation and liability, but sometimes litigation happens.  When it does, or when it is threatened, employers need to start the process of gathering information to defend against the claims.  One of the first steps in the process should be identifying where relevant information might be stored. Increasingly, the answer to that question is in some electronic form, which may be subject to automatic deletion policies and disappear if steps are not taken.

When involved in a litigation or having received a demand letter or agency charge, the parties have a duty to preserve relevant information.  As lawyers, what this means is that we often issue litigation hold letters to clients that need to be disseminated to the individuals who may have that relevant information and to put a stop on the automatic deletion of electronic information. However, litigation hold letters can strike fear in the hearts of employees.  I have often had to explain to someone that the mere fact that we are issuing a litigation hold letter does not mean that there is a problem or that there will ultimately be liability in the case.

If you are tempted to skip having the litigation hold letter signed simply to keep the peace — don’t.  Litigations are typically not short affairs and may drag on for years.  Even if you were diligent and searched for all relevant evidence and took steps to preserve it, the fact is that something might have been missed or that there is an allegation that material was destroyed and you later face a sanctions motion.  Now, years after your initial search, you need to explain to a court that you took all reasonable steps to preserve the information.

Not even Opus from Bloom County may be able to calm you down when faced with a spoliation motion seeking sanctions because some information relevant to a lawsuit was accidentally destroyed.  However, signed litigation hold letters can be key evidence in such cases, especially as the employees who originally preserved the data may no longer work for you and are not available to testify that they conducted a search.

Generally, a discussion with your IT department is a great place to start to first figure out what your electronic storage policy is, whether a hold needs to be put in place, and which people may have electronic information that needs to be preserved.  You also need to make attempts to preserve documentary evidence such as hard copies of personnel files, notes on performance reviews, calendars, etc.  What you do not have to do to comply with your obligations is issue a blanket order that no one in the company may destroy any documents until the litigation is concluded.  Instead, the litigation hold should be limited to those people with documents that could be relevant to the litigation.

Deciding just who should be issued a litigation hold letter can be tricky and you should consult with your counsel as to what might be reasonable in each particular case.

 

Vote Early and Vote Often

Posted in Uncategorized

In honor of our new Chicago office, and as reportedly stated by at least two influential Chicagoans, Mayor Daley and Al Capone, we are asking for you to get out the vote.

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for 2015 is in full swing, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

We were so honored to be nominated to the Blawg 100 list for 2014 and would love to repeat this year.

We enjoy writing the blog and hope that you enjoy reading it and find it helpful.  We strive to keep you apprised of the latest legal developments and to provide practical advice for Human Resources and In-House Counsel.  Here is a sampling of our recent posts:

If you have enjoyed and valued our updates during the past year and believe the Employment Discrimination Report deserves a spot in the top 100, we invite you to take a few moments to nominate us. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on August 16, 2015. Thank you in advance for your support!

22406243_s

What Does That Guy Do?

Posted in Disability Discrimination, General Employment Matters

This blog post was inspired by the amazing news that my partner, Patrick Murphy, was nominated by President Barack Obama as the United States Under Secretary of the Army.  My first reaction was to be impressed at this well-deserved honor for Patrick.  My second reaction was “what does the Under Secretary of the Army do?”

7995575_sAfter some quick Internet research, I discovered that the Under Secretary is the second-highest ranking civilian official of the United States Department of the Army.  After that I was even more impressed with Patrick’s accomplishments. It also got me thinking about a situation that seems to arise in a lot of organizations.

Imagine that after some organizational changes in the organization, a new head of a department reviewed the people in the department to see what everyone did just to get a handle on how to supervise the team.  After completing the review, there were several large question marks about what people did in certain positions.  Upon further investigation, there seemed to be one position that no one could explain what that person did.

This is problematic for a lot of reasons, not just how to evaluate performance when you do not know what tasks the person is supposed to be accomplishing.  Another issue issue that arises is dealing with accommodation requests.  In order to address accommodation requests, it is generally necessary to know what are a persons essential and non-essential job functions to evaluate whether an accommodation is reasonable.

It is far easier to make the accommodation analysis if there are written job descriptions that accurately describe the job functions of particular positions.  This helps to establish expectations for the position as well serves as a guideline for what non-essential functions may be removed as accommodation requests.

Also, having written job descriptions that are given to employees helps employers defend against claims of failure to accommodate.  With a written job description, it is difficult for an employee to argue that a job function is not essential or that an employer belatedly made up a job description to add tasks as essential to avoid making an accommodation.

Jobs do evolve over time so employers should periodically review job descriptions to determine if they still accurately describe the position.  If job descriptions are changed, it is helpful if a copy of the new job description is given to the employee and the employee acknowledges receipt of the job description.

Potential Liability From Your Long Forgotten Vacation/PTO Policy

Posted in Employee Termination, General Employment Matters, Sick Leave

Vacation PayOften employers will neglect or overlook revising their vacation and/or paid time off (PTO) policies, which are buried in the employee handbook that was last revised a half-dozen years ago. For many, this is a big mistake. Depending on your jurisdiction, a poorly drafted vacation/PTO policy can carry significant potential liability. If a company’s vacation/PTO policies are unclear or, worse, there are no such policies, its employees may be able to claim they are entitled to payment for their accrued but unused vacation upon termination.

For example, in New York, if there is no clear statement that accrued but unused vacation/PTO time is forfeited upon termination, employees can potentially claim payment for all accrued but unused vacation/PTO. In addition, the company may be left unable to “correct” (i.e. take away) already accrued vacation/PTO time payable under these policies. In other jurisdictions, policies that deny payment for accrued vacation/PTO may be prohibited altogether (e.g. California). Employers must also be cautious of the interplay of state and local paid sick (or other) leave laws in order to ensure any legally required leave does not become payable upon termination.

What should you do? First, it is important to know your state and local laws regarding vacation/PTO/paid leave accrual, usage, and payout. Next, you should review all prior versions of your vacation/PTO policies to determine what exactly has been provided and whether or not you can correct those policies retroactively. In jurisdictions that allow it, vacation/PTO policies should be revised and tailored as much as possible to prevent the excessive accrual and payout of vacation/PTO upon termination and reduce the company’s potential liability.

Some companies believe in their business judgment that it is beneficial to provide some form of economic payout to departing employees, ostensibly rewarding them for years of loyal service. This is admirable, however automatic vacation/PTO payouts reward both good and bad employees alike. As an alternative, offering severance, and conditioning it upon the signature of a general release agreement, is a better course of action. This allows the company to retain discretion over how much will be paid to each departing employee depending on the circumstances and also helps limit potential legal claims. General releases do not eliminate all claims, but they go a long way and certainly help us attorneys get a good night’s sleep. As always, we suggest speaking to legal counsel about any contemplated practices in order to ensure they are implemented lawfully and effectively.

Is Your Paternity Leave Policy Discriminatory?

Posted in Americans with Disabilities Act, Gender Discrimination, General Employment Discrimination

28792171_sFirst, let us wish our fellow blogger, Tom Basta our hearty congratulations on the birth of his twins! They are adorable and likely to keep Tom very busy (and tired) these next few weeks.

Before the twins arrived, Tom and I had some discussions about how much time off he was going to take so that we could plan coverage for his absence.  These discussions and a recent webinar on pregnancy accommodation in which I was a co-presenter re-focused me on issues with paternity leave and maternity leave.

The fact is there are still some employers who think that maternity leave should be longer than paternity leave because, well, she was the one busy giving birth.  This may be true.  However, the fact is that employers need to be careful about such policies as they may be discriminatory against men.

If an employer’s policy is only to provide time for bonding with the baby after the birth, then maternity leave and paternity leave should be offered in equivalent amounts. In that case, there is no reason to distinguish between how much time a mother versus a father may spend bonding with the newborn.

For those employers who think that the mother deserves longer leave because she had to physically give birth and the father did not, such policies may be legal provided they are structured in the correct way.  Employers may lawfully give pregnant women longer leave amounts if a portion of the leave is considered disability leave related to actually giving birth and a portion is related to bonding with the newborn.  Again, in this case, employers should make sure that the bonding portion of the leave is the same as being offered to fathers.

Indemnification Clauses: Suit of Armor or Achilles Heel?

Posted in General Employment Discrimination, General Employment Matters

 

 

Corporate ArmorLucrative guaranteed income arrangements, such as management-fee agreements, hold for many companies the promise of additional income with relative ease, leveraging a company’s already established brand and reputation. We commonly see such arrangements in the hotel industry with respect to food and other on-premises services. Other companies seek to avoid various employment-related headaches by hiring outside cleaning, maintenance, or other vendors. All of these arrangements, unfortunately, are fraught with risk, potentially exposing such companies to liability under relevant employment and wage laws.

The courts generally construe the concepts of “employer” and “joint employer” broadly with respect to employment and wage laws. These concepts are then frequently applied or asserted against managers in management-fee arrangements or companies that engage vendors, holding them liable for violations committed against individuals providing services under these types of agreements. In many of these cases, the company may not even pay the employees involved or be authorized to manage their employment and wage practices, however any violations committed by the vendor or owner creates a liability risk.

One solution that is frequently proposed is entering into an “iron-clad” indemnification agreement, where the owner or vendor agrees to indemnify all employment and wage related liability associated with the project or arrangement. Unfortunately, what many companies do not know is that the enforceability of such contractual indemnification clauses is uncertain in some jurisdictions, such as New York. Some courts have reasoned that contractual indemnification of employment or wage liability is against public policy, i.e. an employer cannot contract away its responsibility to pay and manage their employees lawfully and thereby skirt the purposes of the employment and wage statutes. See, e.g., Goodman v. Port Authority of New York and New Jersey, 850 F. Supp. 2d 363, 388-89 (S.D.N.Y. 2012). Although the law here is still unsettled, the reliability of contractual indemnification provisions with respect to employment and wage claims is uncertain at best. Moreover, with the possibility of class and collective actions, as well as steep liquidated damages penalties, punitive damages, and liability for plaintiffs’ attorneys’ fees, caution is advisable.

While management-fee and vendor relationships are relatively easy methods to draw in additional revenue or relieve certain operational burdens, an entity looking to enter into such arrangements cannot always contract away employment and wage related liability. Improper employment and/or wage practices engaged in by a vendor or owner in such a venture could easily result in a lawsuit. Vetting your potential partner is key.