Lame Duck Session’s Amendments to Citizen Led Ballot Proposals (for paid sick time and the minimum wage rate) Challenged and May Change!

 By:  Claudia D. Orr

 

I am having flashbacks to when the regulations increasing the minimum threshold for white collar exemptions under the Fair Labor Standards Act were struck by a federal district court in Texas on November 22, 2016. The regulations, which would have required white collar exemption salaries to be no less than $913/week, would have taken place on December 1, 2018, just eight days later!  By then, most employers had already determined which of its exempt employees would need to receive a salary increase and which would be reclassified as non-exempt and eligible for overtime.  Many had already notified the affected workers.

This could have been made worse if the 2016 regulations had already taken effect when they were struck.  Well, that is what may happen to Michigan’s new Paid Medical Leave Act and the Improved Workforce Opportunity Wage Act which are now being challenged by the Michigan Legislature.  Odd, you bet, given that it was the Legislature that just passed both laws at the end of the 2018 Regular Session.

But, with new legislators, come new voices. The issue is whether citizen led ballot initiatives, which would have placed more employee friendly versions before the voters in November, can be adopted by the legislature and amended (to be more employer-friendly) during the same legislative session. As you know, both laws took effect on March 29, 2019.

Why was this process followed last fall by the republican majority legislature? Because had the voters passed the laws, they could only have been amended or repealed by a subsequent vote of the citizens or by a 3/4th vote of the members in both chambers of the legislature.  By adopting the law, and taking it off the November ballot, the legislature amended both laws by a simple majority of the vote and during the same 99th Legislature Session that had adopted the bills just months earlier.  That is the rub. Can they do that?

Democratic State Senator Chang asked the new democratic Attorney General Dana Nessel to weigh in on the issue. To side step that maneuver, Republicans in the Legislature asked the Michigan Supreme Court to review the matter and issue an advisory opinion. The majority of the justices on the Supreme Court are generally viewed as being more conservative, but there have been some who have been swing votes recently.

On April 3, 2019, the Supreme Court issued an order that states it will “consider” whether to issue an advisory opinion. It has invited both chambers of the legislature (and any of its members) to submit briefs on: (1) whether the court should issue an advisory opinion, (2) whether the Legislature was permitted under Article 2, § 9 of the state constitution to “enact an initiative petition into law and then amend that law during the same legislative session,” and (3) whether the two laws were properly enacted. The court also respectfully asked the Attorney General to submit separate briefs arguing both sides of those issues.

Briefs supporting the constitutionality of the enacted legislation are due on May 15 and those arguing against are due on June 19. Amicus curiae briefs by interested parties are permitted by leave of the court only.

For those who are interested in watching oral argument, the hearing will be streamed live on July 17, 2019 at 9:30 a.m. For further information, go to: https://courts.michigan.gov/courts/michigansupremecourt/oral-arguments/live-streaming/pages/live-streaming.aspx Sometimes you can get a sense of which way the justices are leaning by the questions asked. While the Supreme Court has not yet agreed that it will issue an advisory opinion, given the importance of these issues, we may see one as early as August.

So, what could happen? I hate to speculate, but if the laws were not properly amended, the original laws, as adopted by the legislature, may be back in play. That means that minimum wage could jump to $10 hour. Also, the original earned sick leave act applied to small employers having fewer than 10 employees, requiring them to provide not less than 40 hours of paid sick time a year and all other employers to provide not less than 72 hours of paid sick time a year. There are many other pro-employee differences as well.

At least this time around the already implemented changes if struck should not result in lower employee morale since the alternatives would likely be beneficial to workers. Of course, this is all speculation at this point. Stay tuned!

 

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2019.

US Supreme Court Rules that EEOC Charge is not Jurisdictional Requirement for Bringing Civil Rights Claims in Federal Court

Plunkett Cooney

By: Claudia D. Orr

At first, the media’s announcement of the new U.S. Supreme Court decision, Fort Bend County, Texas v Davis,  left me scratching my head, but after reading the case, it really did not say anything new, it just made the point very clear. The opinion authored by Justice Ginsburg was just released on June 3, 2019.

            A little background information may be helpful. Federal courts are courts of limited jurisdiction. They can hear cases involving a federal question or they can hear cases where there is diversity (in very simple terms, all of the defendant are located out of the state where the claims are brought) and there is $75,000 or more at issue. Federal civil rights claims (i.e., those under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, etc.) present federal questions. If the court does not have jurisdiction, it cannot exercise authority over the case.

            Title VII contains a procedure that applies to most of the federal civil rights statutes whereby charges must first be filed with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged unlawful practice (or within 300 days in states, such as Michigan, where there is a state agency empowered to investigate civil rights violations). If the EEOC determines there is “no reasonable cause to believe that the charge is true”, it issues to the “charging party” a notice of right to sue in court.

But what happens when the charging party files in court without first filing the administrative charge, or before the notice of right to sue is issued, or perhaps fails to allege all of the violations in the charge that are stated in the civil action? Must the federal district court dismiss those civil rights claims upon motion by the defendant/employer? If filing at the EEOC is a jurisdictional requirement, the answer is yes. Let’s look at some of the prior Supreme Court decisions on this issue.

            In 1982, the Supreme Court held that the administrative process applicable to federal civil rights claims is not a jurisdictional prerequisite to suit, but rather “a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v Trans World Airlines, 455 US 385, 393 (1982).

However, just two years later, the Court felt obliged to clarify its prior statement, stating, “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. … [I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”  Baldwin County Welcome Center v Brown, 466 US 147, 152 (1984). The Court further clarified that it had not declared in Zipes that the requirement does not ever have to be satisfied; but only that it is subject to waiver and tolling, etc.

            In the recent case, the former employee had filed a charge at the EEOC alleging sexual harassment and retaliation. Later, she “amended” her charge (or thought she had) by writing on the intake questionnaire “religion”, “discharge” and “reasonable accommodation”.  Apparently, after the initial charge was filed, she was fired for failing to report to work on a Sunday due to a church commitment when she had been told she would be fired if she did not report. A point of fact: writing comments on the intake questionnaire is not how charges are amended.

            After receiving her notice of right to sue, the former employee brought a lawsuit that contained a claim of religion based discrimination. “Years into the litigation, Fort Bend asserted for the first time that the District Court lacked jurisdiction to adjudicate [the] religion-based discrimination claim because she had not stated such a claim in her EEOC Charge.” The district court granted the motion finding the requirement to be jurisdictional. The Fifth Circuit reversed holding that this was not a jurisdictional requirement, but rather the “requirement is a prudential prerequisite” to filing suit.

The Supreme Court agreed to hear the case to decide the issue once and for all. The issue was framed as follows: “whether a precondition to suit is a mandatory claim-processing rule subject to forfeiture, or a jurisdictional prescription.” The Court explained that jurisdictional requirements can’t be waived and, in fact, a court may raise the issue sua sponte (on its own) at any time. If a court does not have jurisdiction, it lacks authority to act in the case.

The Court characterized the charge filing requirement as “a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” “[A] rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.”

So, there you have it. Employers should continue to raise the defense as early on in litigation, but a Plaintiff may be able to argue that there are reasons why the failure should be excused. Dismissal on this basis is not a certainty.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2019.

Causal Connection between Protected Activity and Adverse Action Supported By Good Deed

By:  Claudia D. Orr

My clients know what I am going to say when they want to “bend the rules” to do something nice for one of their employees: “No good deed goes unpunished.” This is just one issue that caused the employer trouble in Redlin v Grosse Pointe Public School System, a recent decision published by the U.S. Court of Appeals for the Sixth Circuit. Let’s look at what happened.

In September 2012, plaintiff Debra Redlin was hired as an Assistant Principal at the Grosse Pointe South High School. She and another Assistant Principal, Terry Flint, reported to Deputy Superintendent Jon Dean. In the summer of 2014, Moussa Hamka became the principal at the high school.

In 2014, Dean told Flint that he intended to conduct a “spot-check” on a social worker who was suspected of being intoxicated at work. Dean told Flint to keep it confidential, but Flint apparently warned the social worker. When Flint confessed, a letter of concern was placed in his personnel file.

In December 2014, Vice Principal Flint made statements to plaintiff about the media specialist’s evaluation that suggested he was going to try “to nail” the employee on his evaluation. Plaintiff warned the employee. That employee discussed the issue with Principal Hamka who told plaintiff she would be disciplined for disclosing the confidential information.

Plaintiff complained to Dean about the Principal Hamka’s comments and threat. Dean interpreted plaintiff’s complaint to be about sex discrimination and harassment. The complaint was resolved informally and both plaintiff and the principal committed to working together.

Following the resolution of plaintiff’s complaint, Dean met with Plaintiff to discuss her inappropriate disclosure of Flint’s evaluation of the media specialist and what her discipline would be for making the disclosure. Dean told her that he would hold plaintiff’s discipline in “abeyance” through the end of the school year since he knew she was looking for administrative positions in other school districts.

There it is; a good deed. Dean was trying not to tarnish plaintiff’s work record while she sought other jobs. Of course what follows the good is the punishment: Plaintiff testified that she interpreted this as a threat — that Dean wanted her gone and that if she did not leave the school district by the end of the school year, she would be disciplined.

In June 2015, Gary Niehaus became the new district’s superintendent. He decided to transfer plaintiff to a middle school because she had warned the employee about the performance review and “because of her gender complaint” against Hamka.  Good grief.  Seriously?  Wasn’t there anyone to advise him this was a really, really bad reason for the decision?  I know the school district’s attorney and I bet he about fell over with that testimony. While for two years plaintiff received the reduced wage rate paid to assistant principals at middle schools, Niehaus testified that this had been a mistake and he eventually paid her the difference in back pay.

I am going to skip a lot of the facts but in November 2015 plaintiff took a leave under the Family and Medical Leave Act (FMLA) for stress, filed a discrimination charge in December 2015 alleging sex discrimination and retaliation and, after she got a right to sue letter from the EEOC, plaintiff filed suit in the U.S. District Court for the Eastern District of Michigan. Plaintiff alleged, among other things, sex discrimination and retaliation for complaining about sex discrimination and for taking a FMLA leave. The court granted the school district’s motion for summary judgment and plaintiff appealed.

In short, the appellate court found plaintiff and Flint to be similarly situated and that, while both plaintiff and Flint disclosed confidential information, only Flint received a simple “letter of concern” which did not affect his performance review. By comparison, plaintiff received a “minimally effective” rating on her performance review which resulted in a contract limited to one year, no merit pay or increase and a performance improvement plan which carries with it a threat of termination.

It also found that the transfer to a middle school also satisfied the adverse action requirement for her sex discrimination and retaliation claims under Title VII and state civil rights law even though, in the end, she did not suffer a wage cut.  Her transfer outwardly appeared to be not only a loss of prestige but also a loss of salary.  The minimally effective rating on her performance review also had consequences.

Moreover, it was suggested to plaintiff that she should leave (Dean told plaintiff “he didn’t see [her] [belonging at the High School]”  and told her she would only be disciplined if she didn’t find another job before the end of the year) and Niehaus admitted transferring plaintiff, in part, because of the “gender complaint”.  These are not good facts.

There is a lot of analysis by the appellate court concerning the wrongdoing by plaintiff compared to Flint, the different decision makers involved in disciplining the two employees, the proximity in time between the sex discrimination complaint and adverse action, etc.  However, in the end, the discrimination and retaliation claims under the civil rights laws were reinstated.

This case demonstrates several things.  First, as I said above, no good deed goes unpunished.  Second, before taking action against an employee who has complained of discrimination (or in this case because the employee complained), it’s wise to seek legal advice.  And, third, just because an employee is not fired, that doesn’t mean the employer is not at risk for serious civil claims. Consulting with an employment attorney along the way may have saved the school system a lot of trouble, and expense.

 

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2019.

White House Directs Agencies to Tighten Visitor Visa Enforcement

By Alexandra LaCombe

 

At a glance

  • A recent Presidential Memorandum orders immigration agencies to develop plans that would reduce business visitor and tourist overstays in the United States, including those under the Visa Waiver Program.
  • The Memorandum also orders the agencies to develop enforcement proposals focused on countries with nonimmigrant overstay rates over 10%.

The issue

A new Presidential Memorandum directs the Department of State (DOS) and Department of Homeland Security (DHS) to recommend ways to reduce the number of business and tourist visitors who overstay their authorized period of admission in the United States, including those who use the Visa Waiver Program (VWP), as well as to take actions to reduce the overstay rates for nonimmigrant visa categories generally.

The Memo directs federal immigration agencies to do the following:

  • Visa Waiver Program recommendations: Within 180 days, DHS must report to President Trump on its ongoing efforts to reduce VWP overstays, as well as provide recommendations for further enforcement with respect to the program.
  • Targeted enforcement for countries with more than 10% B visa overstay rate: DOS, in conjunction with DHS and the Department of Justice, must provide President Trump with recommendations to reduce B overstays from countries with overstay rates over 10%, as identified by the DHS FY 2018 Entry/Exit Overstay Report. Proposed actions against nationals of these countries could include suspension or limitation of travel for current visitor visa holders, suspension of visitor visa issuance, limits to duration of admission to the U.S., and/or additional documentary requirements.
  • Take action to reduce overstay rates for all nonimmigrant visa types: DOS and DHS are ordered to “immediately” take action to reduce the overstay rates of all types of nonimmigrant visas. The memorandum specifically directs DOS and DHS to develop measures to impose admission bonds as a means of enforcing visa compliance across all nonimmigrant categories and submit a status report to the President on this issue.

What the Presidential Memorandum means for employers and foreign nationals

The Memorandum does not have immediate impact on the B-1/B-2 visitor visa program or the Visa Waiver Program, but is part of the Trump Administration’s ongoing focus on visitor visa compliance and enforcement. The Administration has recently added a biometrics screening requirement and new enforcement initiatives for certain nonimmigrants seeking to extend their stays in the United States, including visitors for business and tourism. The Department of Homeland Security is planning to issue a proposed regulation later this year that could place new limits on the visitor visa category.

Increased scrutiny of the visitor visa program and overstays generally highlights the vital importance of compliance with immigration program rules. Organizations may want to take steps to review their business visitor procedures to ensure compliance. All foreign nationals temporarily in the U.S. should ensure they are admitted by U.S. Customs and Border Protection (CBP) for the correct duration, and that they depart the United States by the expiration of their period of authorized stay. Foreign nationals can view their official duration of authorized stay at the CBP I-94 website.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 649-5404 or alacombe@fragomen.com. Alexandra is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Fragomen Worldwide.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May, 2019

EEO-1 Reporting:  The Drama Continues with 2017 Added Pay Data Reporting

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By: Miriam L. Rosen, McDonald Hopkins PLC

 

EEO-1 Reporting:  The Drama Continues with 2017 Added Pay Data Reporting

 

If you are looking for a little more EEO-1 drama, look no further.   In response to a federal district court order, the EEOC announced on April 4, 2019 that covered employers will have until September 30, 2019 to report 2018 pay data under the EEO-1 Component 2 reporting requirements.

Then, responding to the court’s mandate that the EEOC collect two years of pay data, the EEOC announced in early May 2019 that the EEO-1 Component 2 filing must include pay data for both calendar years 2017 and 2018. EEOC has indicated that it expects to open the online portal for submission of the Component 2 data in mid-July 2019.

Required Pay Data

Looking at a snapshot of the workforce for the applicable period, the EEO-1 Component 2 will require employers to report annual compensation data (W-2 Box 1 information) broken out by ten job categories, twelve salary bands, and race, gender, and ethnicity.

Component 2 will also require employers to report the aggregate of annual hours worked by job categories, salary bands, and race, gender, and ethnicity.  For non-exempt employees, this will require reporting of actual hours worked.  For exempt employees, an employer may use a proxy of 40 hours per week for full-time employees and 20 hours per week for part-time employees multiplied by weeks worked.

Is the Pay Data Reporting Requirement Likely to Change?

The EEO-1 reporting requirements have been like a roller coaster for employers in 2019 and the ride may not be over yet.  The Department of Justice has appealed the underlying court decision that reinstated the Component 2 data reporting requirement.    Although the appeal does not stay the district court’s order, it is possible that the reporting could be either delayed or stayed due to the pending appeal or for other reasons.

One of those “other” reasons could be the recent confirmation of Janet Dhillon as the new Chair of the EEOC.   After a wait of nearly two years, the U.S. Senate confirmed Dhillon on May 8, 2019 – finally giving the EEOC a quorum. Dhillon, like former Acting EEOC Chair Victoria Lipnic (who remains on the Commission), has expressed skepticism about the benefits of collecting pay data.

Where do thing stand now?

For now, employers need to prepare for the following:

  • Submit EEO-1 Component 1 data on employee race, ethnicity, and gender to the EEOC by May 31, 2019.
  • Submit EEO-1 Component 2 data on compensation and hours by job categories, salary bands, and race, gender, and ethnicity for 2017 and 2018 to the EEOC by September 30, 2019.

In this year of EEO-1 drama, it’s certainly possible that things could change. So, stay tuned!

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2019.

Marijuana Violations May Prevent Eligibility for Naturalization

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By Alexandra LaCombe

 

Marijuana Violations May Prevent Eligibility for Naturalization

 

At a glance

Despite legalization in several U.S. states and foreign countries, the possession, use, sale, distribution and production of marijuana remain illegal under U.S. federal law and could render a foreign national unable to demonstrate “good moral character,” a key requirement of naturalization to U.S. citizenship.

The issue

U.S. Citizenship and Immigration Services (USCIS) has issued internal policy guidance reminding its adjudicators that, despite decriminalization of the possession, use, sale, distribution and production of marijuana by several U.S. states and foreign countries, these activities remain illegal under U.S. federal law and can prevent naturalization applicants from establishing the good moral character required by law to become a U.S. citizen. This includes the use of medical marijuana.

The agency guidance does not reflect a change to U.S. naturalization law or its interpretation, but does highlight the risks of controlled substance use, even use that might be permissible under state law, as a potential bar to becoming a U.S. citizen.

Background

To qualify for naturalization, an applicant must show that he or she has been a person of good moral character, generally during the five-year period immediately preceding his or her application and up to taking the U.S. Oath of Allegiance (a three-year period in some cases, such as naturalization of individuals who became permanent residents based on marriage to a U.S. citizen). Conduct outside the five-year period can also impact a GMC finding, but U.S. regulations explicitly state that during the GMC statutory period, a person will be found to lack GMC if he or she has violated any federal, state, or foreign law relating to a controlled substance (provided the violation was not de minimis as defined by statute). Despite recent changes in some U.S. states that legalize marijuana within those jurisdictions, U.S. federal law still classifies marijuana as an illegal controlled substance.

What it means for foreign nationals

USCIS’s internal guidance does not change the legal requirements for naturalization. The guidance does, however, signal the Department of Homeland Security’s continued attention to the interaction between federal controlled substance law and recent state (and in some cases, foreign) marijuana legalization laws in the context of U.S. immigration and naturalization.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 649-5404 or alacombe@fragomen.com. Alexandra  is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Fragomen Worldwide.

 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May, 2019

EEOC Confirms Pay Data Collection Reporting

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By: Miriam L. Rosen, McDonald Hopkins PLC

 

EEOC Confirms Pay Data Collection Reporting

 

            After what seems like months of drama about EEO-1 reporting issues, on April 30, 2019 the EEOC confirmed that employers will be required to submit pay data by September 30, 2019.   The text of the EEOC’s notice is below and can be found on the EEOC website:

Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2018 by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar year 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available. Filers should continue to use the currently open EEO-1 portal to submit Component 1 data from 2018 by May 31, 2019.

As a result of the court vacating the Office of Management and Budget’s stay of Component 2, the EEOC will also collect Component 2 data for either calendar year 2017 or calendar year 2019, and will post an additional notice by May 3, 2019, announcing its decision.

               If you have not been following this EEO-1 drama play out (See 4.10.19 Detroit SHRM Legal Update for more on this), here is what you need to know:

  1.          EEO-1 Component 1 Filing Deadline.  The filing deadline for reporting 2018 data on the number of employees who work for the organization by job category, race, sex, and ethnicity in May 31, 2019.  The EEOC portal is open and employees can submit data.
  2.          EEO-1 Component 2 Filing Date.   The EEO-1 Component 2 data will consist of pay information for employees by race, ethnicity, and sex by job category.  The deadline for filing this information is now September 30, 2019.   The EEOC portal submitting pay data is expected to open in July 2019.

            There is still a possibility that the EEOC could appeal the recent court order requiring pay data reporting.  Employer should continue to monitor the EEOC website for updates on the reporting requirements.

            One thing seems certain about this EEO-1 reporting season…there will be drama.

 This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2019.

Does Your Company’s Application Process Violate the ADA?

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By:  Claudia D. Orr, Attorney, Plunkett Cooney 

 

 

Does Your Company’s Application Process Violate the ADA?

 

Back in the day, the biggest equal employment opportunity issue surrounding the hiring process was where and how the employer advertised for employees. Word of mouth was taboo since the method tended to perpetuate the same demographics as those already in the workplace (e.g., white employees tended to refer their white friends). So was advertising only in the local, suburban newspaper for the same reason.

But today, the proverbial “Help Wanted” sign is on the internet and generally open to the public. So how does an employer get in trouble these days with its hiring process?

I just read an interesting opinion by the United States District Court for the Northern District of Ohio that gave me pause. It is a case brought by Edward Kasper, as a class action, against Ford Motor Company.

There are two interesting issues in this case but, first, let’s look at the allegations. Plaintiff Kasper is a developmentally disabled individual who attempted to apply for work at Ford. To apply, an individual needs to be able to navigate, at least somewhat, Ford’s website application portal. Kasper indicated that because of his cognitive disability, it made it difficult for him to navigate the portal and complete any “information-intensive” online tasks.

To remedy such a problem, Ford’s website has a telephone number that a person with a disability can call to request accommodation with the application process. Next to the phone number is a message advising prospective applicants that they should not only leave their names and phone numbers, but also the details about the jobs that interest them. Ford will then return the call, although Kasper alleges no such call was made by Ford in response to his voice mail.

Kasper’s complaint is that the design of Ford’s website not only makes it difficult to find the phone number to call for accommodation without assistance, but also without help he could not access the information he needed about the job openings. Kasper alleges that this has a disparate impact on individuals with disabilities. He also brought claims for failure to accommodate under the Americans with Disabilities Act on behalf of himself and similarly situated disabled individuals.

The first interesting issue is that the court dismissed the disparate impact claim because Kasper failed to exhaust his administrative remedies at the Equal Employment Opportunity Commission (“EEOC”) as to this claim. In other words, that wasn’t part of the charge he filed at the EEOC.

What makes this interesting is that apparently the need to exhaust remedies at the EEOC is not settled law nation wide. It is in the Sixth Circuit Court of Appeals, but not in other federal circuits. The United States Supreme Court will hear a case within a week that arose out of the Fifth Circuit and had allowed a worker to pursue a religious discrimination claim that wasn’t raised in the charge filed with the EEOC. Given that the Supreme Court took a case that allowed the claims to go forward, I am hopeful it is planning on reversing that decision. By the way, the Supremes also just agreed to hear a trio of cases that will decide whether Title VII prohibits discrimination based on sexual orientation or transgender status. All I can say is, about time!

The second interesting part of this case is Ford’s argument that “it” has “no records of prospective applicants who did not actually submit applications” and that this is the only way Ford could identify other potential members of the class. The argument was rejected by the court as was Ford’s argument that “the class action vehicle is inappropriate simply because [Kasper’s] class claims may require individualized determinations as to whether class members are legally ‘disabled.’”

While the court recognized that this may be true, to accept this broad proposition so early in the case is the same as saying that a disability class action may never proceed. The complaint narrowed the potential class “to prospective Ford applicants whose disabilities impeded their ability to apply using Ford’s online application process.” According to the court, that is sufficient to allow the case to move forward into discovery.

So, does your company use an online application process? How easy is it to navigate the portal?  If it is not easy, another potential class claim might be that it has a disparate impact based on age since older workers tend to be less tech savvy.

You might try to navigate it yourself and see if you give up in frustration. Is there an easy way to bypass the process and seek accommodation? Or is it buried, along with the information the applicant would need in order to apply via phone? Ford may find out that its portal is not easily assessable via this class action.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

 Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2019.

BOUNCING STRESS BALLS LEAD TO ADA AND FMLA CLAIMS

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By: Carol G. Schley, Clark Hill PLC

 

BOUNCING STRESS BALLS LEAD TO ADA AND FMLA CLAIMS

 

            A recent case from the federal Sixth Circuit Court of Appeals (which includes Michigan) is a reminder that what appears to be innocuous workplace behavior can sometimes snowball into a lawsuit.

            The case, Tinsley v. Caterpillar Financial Services, involved plaintiff Cindy Tinsley, who was a long-time employee of Caterpillar.  After being employed for several years, Ms. Tinsley was assigned to the Four Pillars Project (“FPP”). Her direct supervisor was Amy Clendenon, who in turn reported to Paul Kaikaris.

            After a couple of years, Ms. Tinsley asked Mr. Kaikaris to remove her from the FPP because she was overwhelmed with work and feeling “stressed beyond what [she was] physically able to handle.”  In response, Mr. Kaikaris and Ms. Clendenon reassigned some of Ms. Tinsley’s projects.  Shortly thereafter, Ms. Tinsley took a few days off under the FMLA for a “confidential medical condition.” About two months later, Mr. Kaikaris and Ms. Clendenon met with Ms. Tinsley to discuss her poor work performance, gave her a “did not meet performance expectations” mid-year review, and put her on a performance improvement plan (“PIP”).  Ms. Tinsley vehemently disagreed with the PIP, and told Mr. Kaikaris that she believed he gave her a poor review because she had complained to him about her co-workers bouncing stress balls while at work.  She then sent emails to HR about the stress of her position, stating that her mid-year review was inaccurate and that she was being subject to a “hostile work environment” due to her co-worker’s “horseplay,” which included stress ball bouncing.  HR investigated and found that Ms. Tinsley mid-year review was appropriate.

            Thereafter, Ms. Tinsley began taking frequent medical leave due to “mental and emotional duress.”  She also repeatedly requested a new supervisor.  The employer did not provide her with a new supervisor, but for an extended period of time granted her leave requests, providing her with FMLA leave that significantly exceeded the statutory 12 weeks maximum.  Ultimately, the employer advised Ms. Tinsley it could not reasonably accommodate her medical condition or her request for a new supervisor and denied her request for additional medical leave.  She then retired and sued the company for failure to accommodate under the ADA and retaliation under the FMLA.

            At the trial court level, the employer won on summary judgment on both claims, and Ms. Tinsley appealed.  The Court of Appeals affirmed the dismissal of the ADA claim, finding that Ms. Tinsley wasn’t disabled under the ADA.  To establish a disability, Ms. Tinsley was required to show she was substantially limited in a major life activity.  She claimed that she was limited in the major life activity of working, but all she could show was that she couldn’t perform her particular job.  This was insufficient according to the court, because “a plaintiff who asserts that her impairment substantially limits the major life activity of ‘working’ is still required to show that her impairment limits her ability to ‘perform a class of jobs or broad range of jobs.’”  Therefore, because she did not prove a disability under the ADA, the employer had no obligation to reasonably accommodate her.

            However, with respect to the FMLA claim, the Court of Appeals reversed the lower court.  In particular, the court found that the close temporal proximity (approximately two months) between Ms. Tinsley taking FMLA leave and her negative performance review raised an inference that the performance review was done in retaliation for her taking the leave.  Accordingly, the court remanded the case back to the trial court for further proceedings on the issue of whether the employer could demonstrate a legitimate, non-discriminatory reason for its adverse employment action against Ms. Tinsley.

            This case demonstrates that seemingly innocuous conduct in the workplace, like bouncing stress balls, can spiral into a lawsuit.  While we don’t know all of the circumstances surrounding Ms. Tinsley’s employment, the case indicates that there are a few things the employer could have done that perhaps may have avoided a lawsuit, such as:

  • Minimizing disruptive behavior in the workplace. Tinsley’s main complaint against her supervisor was that he allowed raucous behavior at work.  While such behavior is not necessarily legally forbidden, it can negatively impact the work atmosphere and lead to dissention, especially if it begins to get too out of hand.  There is nothing in the case that indicates the employer ever told Mr. Kaikaris to cool it with the stress ball bouncing.
  • Monitoring employee performance to address issues early and on an ongoing basis. Tinsley was shocked by her mid-year performance review and being put on a PIP.  While sometimes an employee’s work performance can decline rapidly, in many cases, poor or declining performance is something that, if monitored correctly, can be caught and addressed early.  You want to avoid situations where an employee is blindsided by a negative performance review.
  • Properly Tracking FMLA Leave. Tinsley’s repeated requests for leave resulted in the employer granting her FMLA leave well beyond the 12 weeks statutory maximum.  An employer should carefully track and document FMLA leave to ensure compliance with the law and to avoid an employee’s leave time running amok.
  • Hiring Counsel. When there are ongoing issues with an employee, or situations that seem potentially problematic, it is best to involve legal counsel sooner rather than later.  Legal counsel can provide guidance on how to effectively handle the issues while minimizing potential liability, hopefully preventing litigation down the road.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at cschley@clarkhill.com or (248)530-6338.

                                 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  April 2019

 

More Drama with the EEO-1 Reporting

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By: Miriam L. Rosen, McDonald Hopkins PLC

 

More Drama with the EEO-1 Reporting

 

One form, so much drama.

            Employers with at least 100 employees and certain federal contractors with 50 or more employees must file a Standard Form 100, Employer Identification Report (EEO-1 Form)  annually identifying the number of employees who work for the organization by job category, race, sex, and ethnicity.

            Seems simple enough, but really so much drama.

            For years, employers submitted the EEO-1 Form annually by September 30th reflecting the make up of their workforce for a designated pay period during the preceding months.  Towards the end of the Obama Administration in September 2016, however, the EEOC implemented a new – and highly controversial – component to the EEO-1 reporting by requiring employers to disclose pay data by race, ethnicity, and sex by job category.

            To address the processing related to implementing the new pay reporting requirements, the EEOC pushed the 2017 EEO-1 filing date from September 30, 2017 to March 31, 2018.

            However, in August 2017 with the new Trump Administration in place, White House Office of Management and Budget indefinitely suspended the pay data reporting requirement.  The OMB said the data would have limited use, would be burdensome to collect, and raised privacy concerns.  In contrast, various groups supporting collection of pay data saw things differently.   As you might expect, litigation ensued.

            With the litigation still pending, the EEOC set the date for filing the 2018 EEO-1 data for March 1, 2019.   Then, the partial government shutdown in January 2019 impacted the opening of the portal for EEO-1 data submission. As a result, the EEOC delayed the EEO-1 filing deadline to May 31, 2019 with the portal scheduled to open March 18, 2019.

                       But then, more drama.

            In the midst of those scheduling issues, on March 4, 2019 the federal judge hearing the pay data case ordered the EEOC to reinstate the pay reporting requirements – ASAP.   Initially, the EEOC sought to delay the pay reporting until 2020. However, at an April 3, 2019 hearing, the EEOC indicated that it could implement the pay reporting component by September 30, 2019 by using an outside contractor at a cost in excess of $3 million dollars.

            In its brief to the court, the EEOC noted that the expedited timeline would present “significant practical challenges” in collecting and processing the payroll data.   Of course, no acknowledgement of the practical challenges that employers will face in collecting and processing the data that the EEOC recognizes is actually likely to “yield poor quality data because of the limited quality control and quality assurance measures that would be implemented due to the expedited timeline.”

            So, where do things stand now? The current status is that the standard EEO-1 reporting of race, sex, and ethnicity by job category is due by May 31, 2019.  In the coming weeks, the federal judge will assess the EEOC’s position and make a determination on the pay data reporting deadline.  It’s possible that a second EEO-1 report with pay data by race, ethnicity and sex will be due by September 30, 2019.   Of course, it’s equally possible, that some development will further delay the pay reporting requirement.

            One form, so much drama.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2019.