Signs, Signs, Everywhere a Sign: What Employers Need to Know About Tennessee’s New Gun Posting Law

No Guns or Weapons SignTennessee employers– you can generally keep weapons off your property, but if you want to prosecute violators, you need the right sign. And, effective July 1, 2016, the state has changed what it says is an acceptable sign.

The new requirements are very specific. The notice must:

  • Be displayed in “prominent locations including all entrances primarily used by persons entering the property;”
  • Be “plainly visible to the average person entering the property;”
  • Be in English, and it also may be duplicated in any language used by persons who frequent the property;
  • Include the phrase “NO FIREARMS ALLOWED” and that phrase must be at least one inch high and eight inches wide;
  • Include the phrase “as authorized by T.C.A. § 39-17-1359” (apparently in any size you want); and
  • Include a “pictorial representation of the phrase ‘NO FIREARMS ALLOWED,’” and if you were wondering what exactly that means, the statute tells you. It must include a “circle with a diagonal line through the circle and an image of a firearm inside the circle under the diagonal line.” The “pictorial representation” must be at least four inches high and four inches wide, and the diagonal line must be at a 45 degree angle from the upper left of the circle to the lower right side of the circle.

If the building or property is posted with a proper “no firearms” notice, then possession of a weapon on posted property is a Class B misdemeanor punishable by a $500 fine. Even if you are a handgun carry permit holder, you can still commit a Class B misdemeanor for possessing a weapon on posted property. However, handgun-carry permit holders are permitted to keep their firearms and ammunition locked inside their vehicles even if the property is posted in accordance with Tennessee’s so-called “guns-in-trunks” law.

There is a grace period for compliance with the new law. Individuals, businesses, and government entities that were already posted as no-weapons areas as of January 1, 2015 have until January 1, 2018 to replace the signs with signs that meet the new statute’s requirements. If, however, you are late to the “no weapons” posting party, make sure you get a compliant sign.


Fines Increasing: Fresh Incentive for Employer Immigration Law Compliance

i9 form

The U.S. Department of Justice (DOJ) has issued an interim final rule that increases significantly the monetary fines assessed against employers for violations of federal immigration law.

Under the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from:

  • Knowingly hiring or employing unauthorized workers;
  • Failing to properly complete employee Form I-9s; and
  • Engaging in unfair immigration-related employment practices.

Under the new DOJ rule (issued as a mandated adjustment for inflation), the fines for employer violations of IRCA increase by as much as 96 percent, depending on the type of violation and the nature and severity of the offense. The increased fines apply to penalties assessed after August 1, 2016, for any violations occurring after November 2, 2015.

How much have the fines gone up?

The monetary penalties are climbing considerably across the board. The fine for a first-time violation for employing a single unauthorized worker has increased from a minimum/maximum range of $375-$3,200 to a range of $539-$4,313, and there are similar adjustments to the penalties for subsequent violations. For third-time and subsequent offenses, the range of potential fines has jumped from $4,300-$16,000 per offense to a range of $6,469-$21,563.

In addition, the fines for Form I-9 paperwork violations have almost doubled, from a range of $110-$1,100 per offense to a range of $216-$2,156. Even if an employer is cited only for Form I-9 paperwork violations, the resulting monetary penalty will still likely be much greater than before, particularly if the employer is cited for multiple offenses.

The fines under IRCA for unfair immigration-related employment practices, including immigration-related discrimination and document abuse, have also increased, although not as drastically. For example, the penalty range for a first-time discrimination violation, which was previously $375-$3,200, has increased to $445-$3,563. Similarly, the penalties for a second-time violation have jumped from $3,200-$6,500 to $3,563-$8,908, while the range of penalties for subsequent violations has increased from $4,300-$16,000 to $5,345-$17,816.

What can employers do?

These increased fines provide employers with a new impetus to ensure that their immigration compliance house is in order. Employers should review their procedures and make sure that the employees responsible for the Form I-9 process are properly trained. (I recently posted an article that included tips to help employers avoid liability when completing their Form I-9s.) The government has recently announced that a new version of the Form I-9 will be published in November 2016 and that employers must use that Form after January 21, 2017. Employers should make certain that those responsible for Form I-9 compliance are aware of this change and have familiarized themselves with the new form before using it to verify new employees. (I will talk more about the new Form I-9 in a future blog post.)

Employers also should consider auditing their existing Form I-9s, either internally or with independent professional assistance. In the event of an investigation by U.S. Immigration and Customs Enforcement (ICE), missing, incomplete, or poorly completed Form I-9s will likely result in significant Form I-9 paperwork fines and may be considered evidence to support a more serious charge that the employer has knowingly employed unauthorized workers. A properly conducted Form I-9 audit can help identify any problems with the existing Form I-9s and give the employer an opportunity to correct any deficiencies before ICE comes calling. The DOJ and ICE have recently published joint guidance specifically designed to help employers conduct these internal audits and take corrective action on their Form I-9s.

The recent increase in fines underscores the importance of sound immigration law compliance. Diligent monitoring of Form I-9 procedures and other proactive measures can help employers avoid liability and mitigate the potential penalties.

Two Big Lawsuits Challenge DOL’s New Overtime Regulations, But Don’t Get Your Hopes Up


The Regulations

As we all know by now, Department of Labor’s (DOL) new regulations regarding the “white-collar” exemptions to overtime go into effect on December 1. These regulations raise the weekly salary requirement for the executive, administrative, and professional exemptions, as well as the annual salary requirement for the highly compensated employee exemption. The new regulations also call for automatic increases every three years tied to surveys of compensation levels at the time.

Two new lawsuits just filed in September in Texas challenge the new regulations. Whether they will be successful in striking down any of the regulations and when remains to be seen.

Lawsuit # 1

The first lawsuit was filed on behalf of states – public employers – including Alabama, Mississippi, and Texas. The basis of the lawsuit is that the imposition of the new rules on the states violates the principle of separation of federal and state governments. The lawsuit further alleges that DOL failed to follow proper rule-making procedures in formulating the regulations, especially as regards to the “indexing” process that will cause the salary levels to go up every three years. The lawsuit seeks temporary relief which might include delaying the effective date of the changes beyond December 1.

Lawsuit # 2

The second lawsuit is similar, except that it was filed by private organizations such as the U.S. Chamber of Commerce and many trade organizations. These private plaintiffs cannot argue, as the states can, that the regulations violate the separation of federal and state governments, but the other arguments are similar. The private-entity case mainly argues that DOL did not follow proper procedures, especially as regards to the indexing. Interestingly, this case was filed in the exact same court in Sherman, Texas, and both cases now appear to be assigned to the same judge.

What to Do

As of now, all of us should have plans in place as to how to address the new salary thresholds. Those options, as we have discussed previously, include raising salaries, converting salaried employees to hourly, avoiding overtime, hiring part-time workers, and using the fluctuating work week method of overtime, among others. We do not recommend changing your new plans as of yet. While it is possible that a federal court order could delay implementation of the new regulations, that may not happen quickly. Even if it does, there likely will be a quick appeal. There is a possibility that the parties could negotiate a delayed implementation while the lawsuits work themselves out, but we do not believe that any of us should count on that either.

We will keep you posted if there are any quick developments.


Can A Job Applicant File A Disparate Impact ADEA Claim? No—According to the Eleventh Circuit

Group Of Mature Students Studying In LibraryIs there such a thing as a disparate impact age claim? The Eleventh circuit last week says not for people applying for a job. On October 5, 2016, the Eleventh Circuit Court of Appeals issued an opinion shutting down claims under that theory for applicants. Mr. Villarreal, the plaintiff, was an applicant for a manager position with R.J. Reynolds Tobacco. The “targeted candidate” for the position was someone “2-3 years out of college.” Mr. Villarreal was, instead, 49 years old. He applied for the position several times and was rejected each time. Almost two years after the first rejection, Mr. Villerreal brought a collective action claiming that Reynolds engaged in a pattern or practice of discriminating against applicants over the age of 40. That type of claim, one in which it is alleged that a policy or procedure of a company effects a certain group differently than others, is known as a disparate impact claim and is specifically covered in the statutory language of the Age Discrimination in Employment Act (ADEA).

The Court turned to the actual language of the disparate impact section of the statute and held that it only covered individuals who already had the status of “employee.” The opinion spends numerous pages going over the statutory structure and legal definitions. One of the important distinctions it makes is pointing out that the disparate treatment section of the statute (where a plaintiff claims to have actual direct evidence of discrimination against them individually) includes language covering “an applicant for employment,” while the disparate impact section does not.

For employers, this could reduce exposure for age claims supported only by allegations that a particular hiring policy adversely affects individuals over 40 years old. As noted by the opinion, however, plaintiffs who believe they have individualized evidence of actual discrimination against them based on age can still bring those claims.

Employers Hold Up on the Hand Out Policies: 11th Circuit Classifies Company Non-Solicitation Policy as Overbroad

Cheerful businesswoman taking paperwork from her colleague in the office.You know that short non-solicitation policy in your handbook that says don’t handout stuff at work that doesn’t have to do with work that you think is clearly legal? Think again. A recent Eleventh Circuit decision agreed with a National Labor Relations Board (NLRB) opinion that found a one line non-solicitation policy to violate employees’ Section 7 rights.

Mercedes-Benz U.S. International (MBUSI) has a plant in Alabama that the United Auto Workers would very much like to organize. MBUSI says it is neutral when it comes to whether its employees want to unionize but it has a policy about when and where materials (including pro-union materials) can be distributed in its plant. Specifically, the policy provides:

“MBUSI prohibits solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas.”

So, this means that if an employee is working, he or she should not be handing out non-work related stuff. That’s fair, right? Not so fast.

The NLRB found that while MBUSI is allowed to:

  1. prohibit employees from handing out non-work stuff while they are supposed to be working, and
  2. prohibit employees who are not working from handing out non-work stuff to other employees who are supposed to be working,

this policy could be interpreted to prevent more than that.  Specifically, an employee could interpret this policy to mean that he or she can’t hand out stuff in a working area, regardless of whether all the employees involved are not working.

The Administrative Law Judge found, and the NLRB agreed, that this policy infringed on workers’ rights because it could be interpreted to violate their right to engage in concerted activities for the purpose of collective bargaining protected by Section 7 of the NLRA.

While the Eleventh Circuit did not agree with everything in the NLRB decision, it did agree that the policy could be interpreted to prohibit protected activity and needs to be changed.

So Now What?

So what can your policies say? The Eleventh Circuit opinion has language indicating the following are probably okay to tell your employees:

  • You may not solicit other employees or distribute materials while you are supposed to be working.
  • You can solicit or distribute materials while you are on break or lunch or otherwise off the clock but only to other employees who are not supposed to be working.

There is some language in the opinion about not being allowed to solicit or distribute in work areas, but a good portion of the opinion is about whether different places in the MBUSI plant were “work areas” or not. The opinion suggests that you can prohibit solicitation on a production line (because you have an interest in safety and production). To avoid problems, however, you may just want to focus on the issue of whether the solicitor or solicitee is supposed to be working rather than where they are located at the time. As with all of the recent NLRB handbook policy decisions, these apply to employers whether they have a union or not.

Bring in the TV Cameras: NLRB and D.C. Circuit Find Employees Airing Grievance in Media is Protected Activity

TV SalesmanAn employee goes on television and maligns his bosses for a new company policy with half-truths—and his bosses fire him for disloyalty. Sounds justified, right? Wrong. A National Labor Relations Board (NLRB) decision (recently affirmed by a D.C. Circuit panel) said as long as the employee’s statements to the media are not “flagrantly disloyal” or “maliciously untrue” the conduct is legally protected, concerted activity. Employees have the right to engage in protected, concerted activity surrounding a labor dispute, but employers also have the right to terminate insubordinate employees who make damaging statements about the company—and in DirecTV, Inc. v. NLRB, the D.C. Circuit found that the employee protection trumped the employer’s prerogative.

Facts of the Dispute

DirecTV wanted to see each of its television receivers connected to landline phones in customers’ homes. This connection enabled customers to have certain enhanced features and benefitted DirecTV by allowing them to track customer viewing habits. To further that goal, DirecTV instituted a new policy for its installation contractors to promote more land-line connections whereby the technicians would be back-charged or docked up to $5 for each customer installation performed that did not connect the receiver to the phone line. This new sales incentive did not sit well with the technicians who had a hard time convincing customers to connect the receivers to the phone line because customers could receive the full range of TV channels without the landline connection. Some of the technicians thought the sales advice suggested that they mislead or lie to customers about the necessity of a phone connection, and did not end up resulting in increasing connection numbers. One manager jokingly instructed technicians that they should tell customers that the TV system would “blow up” without a phone connection, and other supervisors, according to the technicians, instructed them to simply connect the phone line without telling the customer or try to advise customers that the receiver would not work without the phone connection.

After unsuccessfully talking with management to try and get the policy changed, nonunion technicians working for DirecTV’s installation contractor contacted a local news network to air their grievances on the evening news. The TV reporter interviewed the technicians as a group in their company uniforms. Not surprisingly, the interview painted an unflattering picture of DirecTV, with the technicians stating “if we don’t lie to the customers, we get back charged for it” and “we’ve been told to tell the customer whatever it takes to get that phone line into that receiver.”

After the interview aired DirecTV told the contractor that the technicians involved in the interview were not to be in customers’ homes, resulting in their being fired, even those who did not speak on air. Shortly thereafter, the fired employees filed an unfair labor practice grievance with the NLRB.

Legal Protections for Complaining Employees

Generally, employees (even nonunionized employees) in a labor dispute can appeal to third parties to win over support for their cause, but employers also have the prerogative to fire employees where, for instance, an employee publicly criticizes the company even if the criticism was an attempt to draw support to the labor dispute. The NLRB concluded that an appeal to a third party relating to an employment-related dispute can be protected concerted activity even if the third-party appeal is disloyal and disparaging as long as it relates to an ongoing dispute and does not rise to the level of “flagrant disloyalty” or contain “maliciously untrue statements.” In this case, there was no dispute that the technicians’ appeal related to a labor dispute because the pay-docking grievance.

The big question before the D.C. Circuit was whether the interview statements were “so disloyal, reckless or maliciously untrue as to lose the Act’s protection” and centered on the employees’ intent. Prior precedent held that employees have the right to support a consumer boycott of the employer’s products as long as they do not go beyond the dispute to disparage the employer’s product itself. George A Hormel and Co v NLRB. Here, the Board concluded there was no evidence that the technicians intended to cause customers to cancel their service—they were simply seeking public support for their cause and only after their attempts to resolve the dispute with the company failed. The company argued that the focus should not be on the employee’s actual intent, but on what an objective, reasonable observer would infer from the employees’ actions. The Board found, and the D.C. Circuit affirmed, that it could consider subjective intent when assessing whether a third party appeal rises to the level of flagrant disloyalty and concluded that the technicians did not specifically intend to inflict harm on the company and did not act recklessly without regard to the financial consequences to the company, but intended only to garner public support for their position. The Board also found that “for the most part” the technicians’ statements in the news were accurate representations of what the company had told the technicians and “any arguable departures from the truth … were not more than good-faith misstatements” but not malicious falsehoods.

A scathing dissenting opinion found that “when these technicians falsely accused their employer during a television broadcast of certain outrageous business practices, they crossed a line—from labor dispute to public disparagement; from concern about wages and working conditions to a vendetta aimed at undermining the Companies’ reputation” to make it “not a close case.” She noted that the DirecTV policy did not, in fact, require the technicians to lie and did not seriously encourage them to scare customers into accepting an unnecessary service. She further noted that prior precedent rejected the taking of a subjective approach to disloyalty, and that evaluation of whether an act was sufficiently disloyal to warrant termination was an objective one and was shown in this case by the technicians’ acts

Employer Takeaways

The balance between employees’ rights to engage in protected conduct and the employers’ right to fire insubordinate employees will not always yield consistent results. But in cases where it seems that termination is warranted for disloyalty the employees’ subjective intent—whether flagrant and malicious or purely seeking support for their cause—will likely be the determining factor. This protection is in play for concerted activity even in nonunion settings, as was the case here. Employers beware when making termination decisions on the basis of disloyalty—the NLRB doesn’t think things are cut and dried.

When to Say When? Fifth Circuit Rules on When an Accommodation Isn’t Working

Businessman presenting work safety concept, hazards, protections, health and regulations

In a published opinion, the Fifth Circuit has held that an employee’s poor performance in a light-duty position can relieve the employer from any further obligation to find a reasonable accommodation under the Americans with Disabilities Act (ADA). This opinion highlights the importance of the interactive process, and emphasizes that both the employer and the employee must put forth a good faith effort to make an accommodation work.

In Dillard v. City of Austin, Texas, Dillard was injured on-the-job, and then took 12 weeks of Family and Medical Leave Act (FMLA) leave. After his FMLA leave expired, the City continued his leave through a 180-day “Return to Work” program. At the end of that program, Dillard was still unable to return to work, but the City again allowed him to remain on leave. Nearly a year after the accident, Dillard was medically cleared for “limited duty” or “administrative duty” work and sought to return to work.

The City offered Dillard a temporary position as an administrative assistant. Dillard, a manual laborer, expressed doubt about whether he would be able to do the job, but accepted the position. Because he had no secretarial experience, the City offered him several opportunities for typing classes and computer training, but Dillard failed to sign up. Instead, he admitted that he frequently came to work late and left early. When he was at work, he admitted that he made personal calls, played computer games and surfed the internet. He let his supervisors know that he was unhappy in the administrative position and asked to be moved to a different job more suited to his experience. Instead of moving Dillard to a different position, the City terminated him due to his poor performance.

Dillard sued the City under the ADA for discriminatory termination and failure to accommodate. He claimed that the City failed to act in good faith to find a more suitable position to accommodate his disability once it became obvious that the administrative position was a poor fit.

The Fifth Circuit disagreed and affirmed the lower court’s grant of summary judgment in the City’s favor. The Court found that Dillard’s admittedly poor job performance in the light-duty position was not just a legitimate non-discriminatory reason for his termination, but was also evidence that the plaintiff – not the City – caused a breakdown in the interactive process to accommodate his disability. The Court emphasized that

“the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation.”

The Court stated that once Dillard accepted the secretarial position, “the ball was in his court:  it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.” Because Dillard failed to make an effort to succeed in the light-duty position, the Court found that the City was under no further obligation to try to accommodate his disability.

What Should Employers Do?

The Fifth Circuit’s decision should reassure employers that if they are acting in good faith, they are fulfilling their responsibility under the ADA. In providing reasonable accommodations, employers should do what they can to help the employee succeed but do not have to put up with poor performance.

School of Hard (Dread) Locks: EEOC Loses Appeal Over Hairstyle Ban

School of Hard (Dread) Locks: EEOC Loses Appeal Over Hairstyle BanLast week the Eleventh Circuit Court of Appeals affirmed a lower court’s dismissal of a case the EEOC filed over a job applicant’s short dreadlocks. In 2010, Chastity Jones, an African American, applied for a position with CMS, a claims processing company in Mobile, Alabama. Ms. Jones showed up for her interview in a blue business suit and wearing her hair in short dreadlocks. After the interview, the human resources manager told Ms. Jones that she could not hire her with the dreadlocks. Ms. Jones replied that she would not cut her hair and CMS told her that she would not be hired. CMS had a race-neutral grooming policy that said that “Hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.”

The EEOC’s Complaint stated that dreadlocks are a method of hairstyling for black hair and are culturally associated with black persons. As such, the EEOC claimed that a prohibition of dreadlocks in the workplace constitutes race discrimination. The district court dismissed the complaint, finding that Title VII prohibits discrimination based on immutable characteristics, such as race, color, or natural origin and “a hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.” On appeal, the EEOC argued that dreadlocks are a natural outgrowth of the immutable trait of race and that targeting dreadlocks can be a form of racial stereotyping.

The EEOC pled the case as a disparate treatment case, rather than a disparate impact case—but attempted to make both arguments to the Court. The Eleventh Circuit opinion spends some time distinguishing the two types of claims and ultimately, based its analysis on only the disparate treatment theory. It began by noting that Title VII does not define “race” and neither does an EEOC regulation. The Court spends several pages examining dictionary and other sources for such a definition, but finally decides that case law teaches that Title VII protects against discrimination based on immutable characteristics. The protection with respect to immutable characteristics does not extend solely to cultural practices like hairstyle or language use. The Court noted that the distinction is a difficult one:  Discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, but adverse action on the basis of a black hairstyle (a mutable choice) is not.

The opinion also takes some digs at the EEOC for citing its own Compliance Manual which the Court felt was inconsistent with positions that the EEOC had taken earlier. The Manual contains a statement that Title VII prohibits discrimination against a person because of cultural characteristics often linked to race or ethnicity . . . such as a person’s grooming practices. However, in 2008 the EEOC took a completely different position in an administrative appeal where it held that a grooming policy interpreted to prohibit dreadlocks and similar hairstyles lies “outside the scope of federal employment discrimination statutes” even when the prohibition targets “hairstyles generally associated with a particular race.” The Court noted that the Compliance Manual position is also contrary to current caselaw.

Finally, the Court addressed requests by parties to interpret Title VII more expansively by eliminating the biological conception of race and instead to use cultural characteristics with race. The Court writes extensively about the difficulties in using “culture” as the basis for discrimination law due to the ever-changing concepts found under that interpretation. The opinion states that even if the court proved sympathetic to the “race as culture” argument, how would an employer know definitively what cultural practices are associated with a particular “race” and if those practices deserve protection under Title VII? Ultimately, the Eleventh Circuit found that the case law in this matter bound them to find that the EEOC’s claims were properly dismissed.

For employers, the primary take-away from this decision is that a race-neutral grooming policy, as seen above, appears to be blessed by some of the courts. However, the opinion does leave some wiggle room against a policy that would be based on black hair texture, as opposed to hairstyle—but is that really something an employer would do? The more interesting part of this opinion is the pages of dicta dealing with the race vs. culture conflict. It is not likely the last opinion we will see on the subject.

Repercussions of Retaliation: EEOC Revises its Guidance on Retaliation

Repercussions of Retaliation: EEOC Revises its Guidance on RetaliationFor the first time in 18 years, the U.S. Equal Employment Opportunity Commission (EEOC) has issued revised guidance (the Guidance) regarding retaliation. The Guidance, which broadens and clarifies the definition of protected applicant/employee activities, became effective August 29, 2016. There have been seven U.S. Supreme Court decisions addressing retaliation since the EEOC’s last update in 1998. The Guidance accounts for expansions in the case law and Supreme Court guidance on this issue. (It also addresses when the EEOC believes you are interfering with an employee’s right to a reasonable accommodation under the ADA, but that is for another blog post.)

What Constitutes Protected Activity?

The first element of a retaliation claim is that the applicant/employee engaged in some protected activity. Protected activity includes participating in an EEO process or reasonably opposing conduct made unlawful by law. As noted in the Guidance, “[t]he plain terms of the participation clause prohibit retaliation against those who ‘participate in any manner in an investigation, proceeding, or hearing’ under the statute.” 42 U.S.C. 2000e-3(a).

An employee engages in protected activity when he or she participates in an EEO process—makes a charge, testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. The Guidance explains that the “Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the allegations are, or could become, unlawful conduct.” So, although the complaint itself may not be valid, the protection from retaliation still attaches to it. Additionally, the Guidance explains that the participation clause should not be limited to administrative charges or lawsuits filed to enforce EEO rights– it also encompasses an employer’s internal EEO complaint process.

Protected activity also includes an applicant/employee’s opposition to unlawful conduct. Therefore, an employer must not punish an applicant/employee for voicing or otherwise communicating opposition to a perceived EEO violation. This protection, unlike the participation clause, is limited to employees/applicants who act with reasonable good faith and believe that the conduct they oppose is actually unlawful. According to the EEOC, it may be reasonable for an applicant/employee to complain about behavior that has not yet risen to the level of severe or pervasive (but could) as well as behavior that the EEOC considers unlawful, even if some courts disagree with that interpretation (e.g., discrimination based on sexual orientation or gender identity).

The Guidance cites the Supreme Court’s 2009 holding in Crawford v. Metropolitan Government of Nashville and Davidson County, in which the Court explained that workers who complain about unlawful employment practices and workers who reveal unlawful employment practices when they are questioned by an internal company investigator are both protected from retaliation. Referencing the Crawford opinion, the Guidance explains that opposing discriminatory practices has an “expansive definition.” The Guidance also acknowledges that the same activity may qualify as protected under both the participation clause and opposition clause.

A Materially Adverse Action is not the same as an Adverse Employment Action

The Guidance reiterates the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White and states clearly that adverse actions for retaliation purposes are broader than adverse actions for a Title VII violation. To trigger the retaliation protection, the action need only deter a reasonable employee from complaining about discrimination. The EEOC’s non-exhaustive list of potentially materially adverse actions include:

  • Disparaging the person to others (like coworkers) or in the media;
  • Threatening reassignment;
  • Engaging in abusive verbal or physical behavior that may not be sufficiently severe or pervasive to qualify as illegal harassment; and
  • Threatening to take action against close family.

So, just because the action doesn’t affect pay or benefits, it could still qualify as retaliation. The Guidance warns there are no bright line rules for defining potentially material adverse actions.

For Non-Federal Employers, the Employee Still Has to Prove “But-For” Causation

The Guidance acknowledges the Supreme Court’s “but-for” causation standard from University of Texas Southwest Medical Center v. Nasser, but points out that “but-for” does not mean “sole cause.” According to the EEOC, retaliation is a “but-for” cause if it was the straw that broke the camel’s back—even if there were other motivating factors. Evidence of retaliation could include suspicious timing, oral or written statements from decision makers, the different application of rules to the complaining party, or inconsistent or shifting explanations. Facts the EEOC cites that may defeat a claim of retaliation are more limited—the employer didn’t know about the protected activity or it had a legitimate and nonretaliatory reason for the decision.

Recommended Best Practices

Don’t despair—although almost anything could be deemed protected activity or retaliation, the Guidance lists a number of “Promising Practices” you can follow. Hopefully, you are already following some or all of them, but here they are:

  1. A Written Nonretaliation Policy. The EEOC wants you to have a separate policy with examples of what not to do and proactive steps to avoid actual or perceived retaliation. If all of your EEO policies mention retaliation, you are probably okay but make sure this is clear in your policy.
  2. Train Employees and Supervisors. You should make sure all of your folks know that retaliation is against your policy and the law. Include a separate retaliation section in your annual EEO/harassment training.
  3. What to Do When a Complaint is Filed. Reassure the employee and any witnesses that you will not tolerate any retaliation and how they can report any retaliation they think is occurring. Also, you should provide tips to the managers about avoiding even the appearance of retaliation.
  4. Proactive Follow Up After a Complaint. Check in with the complaining party and the manager to see how it is going and address problems as or before they arise.
  5. Review of Employment Actions to Ensure EEO Compliance. HR should be a little more involved with any performance evaluations, pay changes, assignment changes, etc. The manager still needs to supervise the complaining party and needs to know the best way to do it.

In light of the fact that retaliation claims have become the most common EEO claim, composing 44.5 percent of the charges the EEOC received in 2015, you should familiarize yourself with the updated guidance and begin putting these best practices in practice.

Taking a Bite Out of Crime…and Maybe the Employer? OSHA Fines Company Following Criminal Assault on Employee

Taking a Bite Out of Crime…and Maybe the Employer? OSHA Fines Company Following Criminal Assault on EmployeeThe Occupational Safety and Health Administration (OSHA) recently reminded us that every employer needs a violence in the workplace policy or risk citation for third party criminal actions. The OSH Act’s general duty clause requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm to employees. OSHA clearly believes that third party criminal activity can be a recognized hazard and employers have an obligation to address it. It has gone so far as to issue Guidance for Preventing Workplace Violence for Healthcare and Social Services Workers to provide guidance to the healthcare industry on how to handle potentially dangerous patients or environments.

The Facts

Epic Health Services’ employees go into patient homes to provide home health services. According to OSHA, a number of Epic employees reported problems ranging from verbal assaults to domestic violence in the home to being physically groped. One nurse said the father in a home in which she provided services to a child attempted (sometimes successfully) to grope her and commented about her body and later physically assaulted her. (He was later charged with rape and sexual assault.) OSHA found that other employees had told Epic about the father’s prior assaults and the nurse said Epic did not warn her of the danger.

The Citation

OSHA cited Epic for exposing “employees to the risks of physical assaults as they provided nursing care services to both clients and family members and had no system for reporting threats or incidents of violence.” Additionally, OSHA cited Epic for “failing to report all instances of workplace violence, regardless of the severity.” OSHA characterized this as a willful violation– the employer “either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.” The fine is $98,000, which is, of course, not the end of the story–the nurse is suing the company for negligence.

Policy Options

What can employers do to both protect their employees and prevent such citations? OSHA suggests the following:

  • A written violence workplace prevention program
  • A hazard assessment and security procedures for each patient/client
  • Procedures to reduce the risk, including an option for employees to refuse to provide services in a hazardous situation (with no fear of retaliation)
  • Training
  • Procedures for when a violent incident occurs, including incident reports and investigation
  • A system for employees to report all workplace violence, regardless of severity

While some of these recommendations are unique to the healthcare industry, most are not. This applies to any employer whose employees interact with the public, are sent to other sites to perform work, or work with other people (who are not always stable).

Oh, and don’t forget that the cost of OSHA citations just increased significantly. The best practice is to let your employees know that you care about their safety, that they can report concerns and that you take them seriously, even if the threat involves a customer or patient. Not surprisingly, the best way to prove that you care is to have a written policy and enforce it.