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.

 

 

U.S. DEPARTMENT OF LABOR CLARIFIES FMLA LEAVE ISSUE

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By: Carol G. Schley, Clark Hill PLC

 

 

U.S. DEPARTMENT OF LABOR CLARIFIES FMLA LEAVE ISSUE

 

            It is a familiar situation:  an employee needs to take time off for a reason that qualifies under the Family and Medical Leave Act (“FMLA”), but he asks if he can just use his accrued vacation time and “save” his FMLA leave for later use.  In the past, employers faced with this situation might have granted the employee’s request.  However, a recent Opinion Letter from the U.S. Department of Labor (“DOL”) clarifies that under these circumstances, the employer must deem the leave as FMLA-qualifying and start the FMLA clock, regardless of the employee’s desires.

            Opinion Letters are issued by the DOL in response to queries it receives about various federal laws.  While Opinion Letters are not binding like court decisions, they can be used as persuasive authority on statutory interpretation and reasonably relied upon by employers in complying with the law.  The March 14, 2019 Opinion Letter addressed “whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement.”  In response, the DOL opined that when information is presented to an employer that indicates an employee is requesting leave that is FMLA-qualifying, the FMLA is triggered.  According to the DOL, there is no flexibility in the FMLA to allow an employee to choose whether to take FMLA leave:

            Once an eligible employee communications a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave… [T]he employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.

            The DOL also clarified in the Opinion Letter that an employer may not provide employees with more than 12 weeks of FMLA-qualifying leave (or 26 weeks of military caregiver leave) per year.  While the DOL recognized that employers can provide employees with more generous leave benefits, “such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA.”  As a result, “[i]f an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”

            In summary, the Opinion Letter clarifies an employer’s response to a request by an employee to “save” their FMLA leave.  The response, simply, is “no.”  Further, per the Opinion Letter, if an employee wants to take any accrued paid leave for a reason that is also FMLA-qualifying, the paid leave and the FMLA must run concurrently.

            It is interesting to note that the Opinion Letter directly conflicts with a 2014 decision from the federal Ninth Circuit Court of Appeal, Escriba v. Foster Poultry Farms, Inc., in which the court held that an employee “can affirmatively decline to use FLMA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”  The DOL referenced the Escriba case in its Opinion Letter and said that it disagrees with its holding.  Since Michigan is part of the federal Sixth Circuit, the Escriba decision is not controlling over Michigan employers and, therefore, they should follow the DOL’s recent Opinion Letter on FMLA leave designation, pending any further developments in the courts.

            The Opinion Letter is a reminder that FMLA leave issues can be tricky, as evidenced by the situation here where the DOL and a Circuit Court of Appeals came to completely opposite conclusions on the same issue.  When you are in doubt on how to deal with time off requests from an employee, which may not only implicate the FMLA, but also other laws such as the ADA and Michigan’s new Paid Medical Leave Act, it is always best to consult with legal counsel.

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

Let Me Tell You What I Just Heard…

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By: Claudia D. Orr, Attorney, Plunkett Cooney 

 

Let Me Tell You What I Just Heard…

Can a rumor form the basis of a sexual harassment claim? That was the issue that everyone seemed excited about in Parker v Reema Consulting Services, a new opinion out of the United States Court of Appeals, Fourth Circuit.

While not binding on us (since we are located in the Sixth Circuit), it drew a lot of attention with amicus curiae briefs by the EEOC, the National Women’s Law Center, AFSCME, AFL-CIO, National Organization for Women Foundation, and over forty other groups. Amicus curiae briefs are filed by non-parties who have a strong interest in the subject matter and outcome and who wish to inform the court on how issues should be decided. So what caused the entire brew ha? Let’s look at the case.

Evangeline Parker worked for Reema Consulting Services, Inc. (RCS) beginning in December 2014 until May 2016. During her short, 18 month tenure, Parker went from a low-level clerk position to Assistant Operations Manager of the facility. She received six promotions, averaging one every three months! Quite the all-star, right? Or was it something else?

Well, as you might expect, a rumor was started by another RCS employee, Donte Jennings (who was hired at the same time and in the same position as Parker). He began telling other employees that Parker was having a sexual relationship with Demarcus Pickett (a high ranking manager) in order to get promoted. As fate would have it, Parker’s promotions made her Jennings boss. Kismet.

The highest-ranking manager at that warehouse facility was Larry Moppins. He helped spread the rumor by asking Pickett, “hey, you sure your wife ain’t divorcing you because you’re f—ing [Parker]”? As the rumor continued to spread, partly with the help of Moppins, employees, including those who worked for Parker, began to resent and disrespect her.

In late April 2016 (the month before she was fired), a mandatory meeting was called to discuss the rumors.  Parker and Pickett both arrived a few minutes late, together. Moppins let Pickett in, but, in front of all of her coworkers, he slammed the door in Parker’s face and locked the door.

The next day Parker arranged to meet with Moppins to discuss the rumor. Moppins blamed Parker for “bringing the situation to the workplace” and that while he had “great things” planned for her, “he could no longer recommend [Parker] for promotions” because of the rumor. He would not “allow her to advance any further within the company.” [Query, how much higher could she have gone at a warehouse after six promotions?] A few days later Moppins told Parker that he should have fired her when she started “huffing and puffing about this BS rumor” and he began screaming at Parker in anger.

Parker filed a sexual harassment complaint with RCS’s Human Resources Manger against Moppins and Jennings. Not long after that, Jennings (who started the rumor) filed a hostile work environment complaint with the Human Resources Manager against Parker. While Parker was told to have no contact with Jennings, he would go into Parker’s area and chat with her subordinates and laugh, stare and smirk at her. Parker complained about this to the Human Resources Manager, who promptly resigned. Just kidding, but what a mess she had with dueling harassment complaints, right? Let me suggest that this might have been a good time to have an employment attorney investigate the complaints.

On May 18, 2016, Parker was called into a meeting with Moppins, the Human Resources Manager, and RCS’s in-house counsel. She was issued a written warning based on Jennings’ complaint and another one for being insubordinate to Moppins and for having poor management abilities. Parker was then fired. It made me wonder why she would have received six promotions in eighteen months if, in fact, she had such poor management skills. Something certainly was amiss with this whole scenario.

Parker filed a three count complaint in federal district court alleging a hostile work environment based on sex under Title VII, retaliatory discharge for having exercised her rights under Title VII and discrimination based on sex since she was fired without having first received three warnings as required under RCS’s policies.

The federal district court dismissed the complaint, stating in part: “Clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her. But that is not a harassment based upon gender. It’s based upon false allegations of conduct by her.”

The court determined that the harassment was neither severe nor pervasive. And, since the harassment was not based on her sex, her belief that she complained about a violation of Title VII was not objectively reasonable. Thus, the retaliation claim failed as well. Finally, the discrimination claim was dismissed because, as to this claim, Parker had failed to exhaust her administrative remedies at the EEOC since it was not mentioned in the charge.

On appeal, RCS argued that the rumor was started by a coworker because he was jealous of Parker’s success, not because she is a woman. Therefore, the rumor was based on conduct, not sex. The appellate court was not buying this for one minute, stating:

[The rumor implied] that Parker used her womanhood, rather than merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception – one that unfortunately still persists – that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worse, prostitutes selling their bodies for gain.

***

… [T]raditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society…

Thus, the appellate court found the “conduct” alleged in this case to be gender-based.

The court also highlighted how only Parker was banned from the all-staff meeting when both she and Pickett were both late. Also, only Parker was ordered to stay away from Jennings when he complained, but he was allowed to enter Parker’s workspace and jeer and mock her. Finally, only Parker, the female member of the alleged sexual relationship, was disciplined while Pickett, the alleged male participant, was not.

Thus, the appellate court reinstated the hostile work environment claim. Because Parker’s complaint alleged a plausible hostile work environment, the retaliation claim was also reinstated. However, the dismissal of the discrimination claim was affirmed because it was not raised in the EEOC charge. The dissenting judge would have also reinstated this claim.

So, now you understand why there were nearly fifty amicus briefs filed in this case. Parker’s harassment was severe or pervasive and it had consequences. She did not simply endure a “few slights” as characterized by the lower court. Parker was fired. A jealous male co-worker started the rumor that Parker was “sleeping her way to the top” and it was perpetuated by other males, including Moppins, the highest ranking male in the facility. Parker had a door slammed in her face and was screamed at by Moppins. This rumor was humiliating, going “right to the core of somebody’s merit as a human being…”

I wonder if the Human Resources Manager was inexperienced, blind to the facts, or powerless to take the right action. Often it is the latter. Having a trusted relationship with an experienced employment attorney can often make the difference. An outside attorney can weigh in and support the advice being given by Human Resources and prevent an injustice such as the one that may have occurred here.

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.

March Madness DOL-style Follow the flurry of activity at the Dept. of Labor

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By: Miriam L. Rosen, McDonald Hopkins PLC

 

March Madness DOL-style

Follow the flurry of activity at the Dept. of Labor

             While the rest of us were busy filling out our NCAA tournament brackets, the U.S. Department of Labor (“DOL”) was engaged in another kind of March Madness.  In a flurry of activity during the month of March, the DOL issued two notices of significant FLSA rulemaking along with three new Opinion Letters on FMLA and FLSA issues.

            If you were otherwise distracted by your – now busted – bracket, here’s a look at the DOL’s March 2019 activity.

  • Salary Level Threshold Rulemaking

            The DOL started the tournament….ah, rulemaking activity with a big announcement on March 7, 2019 proposing to modify the salary threshold for FLSA white-collar exempt status from the current level of $23,660 per year to $35,308 annually.  Here are the rule’s “highlights” from the DOL’s website:

  • The proposal increases the minimum salary required for an employee to qualify for exemption from the currently-enforced level of $455 to $679 per week (equivalent to $35,308 per year).
  • The proposal increases the total annual compensation requirement for “highly compensated employees” from the currently-enforced level of $100,000 to $147,414 per year.
  • Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10 percent of the standard salary level.
  • No changes to the job duties test.
  • No automatic adjustments to the salary threshold.

The public comment period for the proposed salary threshold rule is now open and runs until May 2019.

  • Regular Rate Rulemaking

            On March 28, 2019, the DOL advanced its agenda to the next round by announcing a proposed rule intended to clarify and update the FLSA’s “regular rate” requirements.

            The FLSA requires that nonexempt employees receive overtime pay at 1½ times their “regular rate of pay” for all hours worked over 40 in a workweek.  In a twist that often confuses employers, the “regular rate” is not always the same thing as an employee’s “hourly rate.”

            The difference between the “hourly” and the “regular rate” can occur because the regular rate actually includes “all remuneration for employment paid to, or on behalf of, the employee,” except specific  payments excluded by the FLSA.  The FLSA’s regulations on the regular rate spell out the types of payments employers must include in the “time and one-half” calculation when determining workers’ overtime rates. These include things like shift differentials and non-discretionary bonuses.  So, for example, an employee’s hourly rate will vary from the regular rate because additional pay from a non-discretionary attendance bonus is included in calculating the regular rate.

            Because determining what should be included in calculating the regular rate is sometimes difficult for employers, the DOL’s proposed rule on the regular rate is intended as clarification.  The proposed rule provides that employers may exclude the following types of payments from an employee’s regular rate of pay:

  • The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
  • Payments for unused paid leave, including paid sick leave;
  • Reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • Reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
  • Discretionary bonuses;
  • Benefit plans, including accident, unemployment, and legal services; and
  • Tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rule also includes additional clarification about other forms of compensation, including payments for meal periods, “call back” pay, and others.  The public comment period for the proposed regular rate rule is also open and runs for a 60 day period.

  • DOL Opinion Letters

            In between its rulemaking announcements, the DOL also found time to dispense some practical advice for employers looking for a little protection in the paint.   The DOL issued three new Opinion Letters on March 14, 2019.

  • FMLA Designation

            The DOL’s FMLA Opinion Letter addresses whether an employer can delay designating FMLA leave time when it learns that an employee’s absence qualifies for FMLA protection.  This situation may arise, for example, when an employer allows an employee to use accrued paid leave time before using FMLA leave time.

            The DOL called foul on delayed designation.  The Opinion Letter makes clear that employers cannot “delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.”  Rather, employers must start the clock on employees’ FMLA leave once they learn that an absence qualifies for federal protection.

  • FLSA and state law conflicts

            In this Opinion Letter, the DOL addressed which law applies when the FLSA conflicts with state or local wage and hour laws.  The DOL made its point by using a New York law as an example.  Under NY state law, residential janitors are excluded from state minimum wage and overtime requirements, but the FLSA does not have a similar exemption.

            After reviewing the tape, the DOL concluded that when a federal, state, or local minimum wage or overtime law differs from the FLSA, the employer must comply with both laws and meet the standard of whichever law gives the employee the greatest protection.   In the example, New York requirements do not cover residential janitors, but the FLSA does. Accordingly, a New York employer must adhere to the FLSA’s minimum wage and overtime requirements because it provides the employee the greatest protection.

  • Employer-Sponsored Volunteering

In the third Opinion Letter issued on March 14th, the DOL addressed employer compensation practices for employees who participate in employer-sponsored volunteer programs. Because the FLSA is intended to protect employee pay, employer-sponsored volunteer programs are subject to scrutiny to ensure that the “volunteer” hours are not really a form of uncompensated hours worked.  The DOL recognized that hours spent on volunteer programs that are both charitable and truly voluntary are noncompensable.   The DOL concluded, however, that programs that are required or where the employer directs or controls the “volunteer work” are not truly charitable and voluntary. In those situations, the employee must be compensated for the “volunteer” time.

To avoid making volunteer work compensable, employers should have a solid game plan in place based on comments in the Opinion Letter:  Participation should be truly voluntary, not required (make it clear in writing); the employer should not direct and control the volunteer work; and employees who do not volunteer should not suffer adverse consequences.

  • The Tournament and the DOL’s Activity Continue

            As we head into April, four teams have “punched their tickets” to the Final Four and the DOL still appears to be caught up in the frenzy.  On April 1, 2019, the DOL issued new proposed rulemaking on the joint employer standard.    Then, on April 2, 2019, the DOL issued three more Opinion Letters.

            Talk about March Madness DOL-style!    And…Go Green!

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.

The Clash of the Titans Results in Published Sexual Harassment Case

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By: Claudia D. Orr, Attorney, Plunkett Cooney 

 

The Clash of the Titans Results in Published Sexual Harassment Case

 

I don’t know about you, but I have to chuckle at all of the television ads by lawyers. None is more entertaining than the battle of the ads between Michael Morse and Geoffrey Fieger complete with snarky comments towards each other.

Morse, whose ads (and phone number) brand him as “Mike Wins”, was counter-punched by Fieger who is now using “a winner” as part of his phone number. Fieger, who brought sexual harassment cases against Mike, was then pictured from behind in an ad by Morse in which Morse proclaims he takes on the “big mouths”. Ok, so I am easily entertained.

But this time, Fieger is doing a victory lap having had his clients’ sexual assault claims reinstated by the Michigan Court of Appeals in a new published opinion that combined the cases brought by Samantha Lichon and Jordan Smits against Michael Morse and Michael J. Morse, PC. Let’s look at what the Court of Appeals said because it is not that often it publishes one of its opinions.

Lichon, who worked as a receptionist at the law firm, claims that Morse not only made unwelcome comments, but also sexually assaulted her “during work hours by physically touching her in a sexual manner without her permission.  The unwanted touching included groping Lichon’s breasts and groin area, while audibly commenting things like, ‘you make me so hard,’ and ‘I want to take you into my office.’” Lichon complained to human resources and was thereafter terminated for poor professional performance.

Lichon, represented by Fieger, filed a four-count complaint in the Oakland County Circuit Court alleging sexual harassment under the Elliott-Larsen Civil Rights Act (“ELCRA”), sexual assault and battery against Mike Morse individually, negligent and intentional infliction of emotional distress, and negligence/gross negligence and wanton and willful misconduct. A fifth count was added thereafter alleging a civil conspiracy between Morse and his firm to intimidate, pressure or coerce Lichon not to file the lawsuit.

Deborah Gordon, who is a well-known plaintiffs’ attorney, a titan in her own right and famous for championing women’s rights (and very successfully), is defending Morse and his firm in the Lichon case. I found this fascinating that she would switch sides and represent defendants in a sexual harassment case. Morse, like some employers, has the employees of his firm enter arbitration agreements. One of the primary benefits of an arbitration agreement is supposed to be privacy. Well, apparently not so much for this case which has been splashed about in the news. In lieu of answering the complaint, Gordon filed a motion for dismissal pointing to the arbitration agreement that Lichon signed on September 29, 2015. The civil lawsuit was dismissed on this basis and the parties were ordered to arbitration.

Smits’ claims are based on an identical fact pattern and arise out of the alleged sexual assault that occurred while she was employed as a paralegal. Smits claims that during the firm’s 2015 Christmas party, Morse approached Smits from behind and grabbed both of her breasts in front of two attorneys. Smits complained to human resources and was told “her number one priority [was] to protect Morse’s reputation.” Smits also complained to one of the attorneys to no avail. Smits tendered her resignation indicating she was not comfortable working at the firm after the incident at the Christmas party.

After leaving the firm, Smits was offered two weeks severance in exchange for a non-disclosure agreement.  Smits also alleges that, after she declined, Morse contacted her personally and said “be careful’ because given his connections in the legal community, he could make it difficult for Smits to find work”.

Smits, also represented by Fieger, filed the same claims, but in the Wayne County Circuit Court (“Smits I”). Instead of answering the complaint, Morse and his firm filed a motion for dismissal because of the arbitration agreement Smits signed and because Smits had also agreed to a six month contractual limitations period. This case was also dismissed and the parties were ordered to arbitration.

In response, Smits filed a second lawsuit against Morse only (“Smits II”). While Smits argued there was no arbitration agreement between her and Morse, the court found that this case should also be sent to arbitration under “res judicata” and the “compulsory joinder rule”. Thus, this case would not be tried in a public forum either.

Without going into all of the nuisances, this case is interesting not just because of the drama surrounding these well-known lawyers, but because the arbitration clause was written in such a way as to limit the claims it covered. Specifically, it stated:

This [arbitration agreement] shall apply to all concerns you have over the application or interpretation of the Firm’s Policies and Procedures relative to your employment, including, but not limited to, any disagreements regarding discipline, termination, discrimination or violation of other state or federal employment or labor laws. This includes any claim over the denial of hire.  This Procedure includes any claim against another employee of the Firm for violation of the Firm’s Policies, discriminatory conduct or other state or federal employment of labor laws. Similarly, should the Firm have any claims against you arising out of the employment relationship, the Firm also agrees to submit them to final and binding arbitration pursuant to this Procedure.

The plaintiffs argued that the scope of the agreement was limited “to only those claims that are ‘related to’ plaintiffs’ employment, and because sexual assault at the hands of an employer or supervisor cannot be related to their employment,” it is inapplicable to the claims now brought against Morse and his firm.

The Court of Appeals framed the issue as follows: “whether the sexual assault and battery of an employee at the hands of a superior is conduct related to employment.” The court concluded that it is not. “Despite the fact that the sexual assaults may not have happened but for plaintiffs’ employment with the Morse firm, we conclude that claims of sexual assault cannot be related to employment. The fact that the sexual assaults would not have occurred but for Lichon’s and Smits’ employment with the Morse firm does not provide a sufficient nexus between the terms of the [arbitration agreement] and the sexual assaults perpetrated by Morse. … Under no circumstances could sexual assault be a foreseeable consequence of employment in a law firm.” Therefore, the trial courts erred in dismissing the complaints and compelling arbitration.

The appellate court noted that the issue of whether sexual assault at the hands of a superior is conduct related to employment was an issue of first impression in Michigan. Central to its conclusion is “the strong public policy that no individual should be forced to arbitrate his or her claims of sexual assault. …the idea that two parties would knowingly and voluntarily agree to arbitrate a dispute over such an egregious and possibly criminal act is unimaginable. The effect of allowing defendants to enforce [the arbitration agreement] under the facts of this case would effectively perpetuate a culture that silences victims of sexual assault and allows abusers to quietly settle these claims behind an arbitrator’s closed door. Such a result has no place in Michigan law.” [citations omitted] The court then limited its ruling to the specific facts of the case, noting that Morse and his firm are essentially the same and any recovery comes out of the same pocket.

What struck me is how the court seems to conclude that Morse did what he was accused of doing without any proceedings or findings below on the merits. Not once during the rendition of “facts” did the court use the word “alleged.” What also struck me is that there was a case in 1993 [Radtke v Everett] in which one of the owners of a veterinary practice sexually assaulted an employee and that act was found to be sexual harassment under ELCRA. I thought it strange that the court never mentioned this Supreme Court decision.

Then I read the dissent by Judge Colleen O’Brien. She cited Radtke, noting she would hold that sexual assault is sexual harassment, a form of discrimination under the ELCRA which the parties agreed to arbitrate. Thus based on the clear language of the arbitration agreement, and the strong public policy favoring arbitration, she would have affirmed the decision of the lower courts to require the claims to be arbitrated. However, while Judge O’Brien felt constrained to reach that result, she does not believe that an employee should be required to arbitrate sexual assault claims. But the Legislature is the proper forum for addressing such policy matters, not the courts.

While I am intrigued by the legal battle that looms, the lesson to remember is that if an arbitration agreement is limited in its scope (connected to employment, for example), then other claims may not be covered. That clearly happened in this case.

Well, stay tuned. Unless these cases get dismissed on another basis, or eventually settled, there will be lots of drama as the clash of the titans continues!

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. March 2019.

 

 

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