EEOC Suffers Defeat in Ongoing Attack on Separation Agreements

The EEOC’s 2013-2016 Strategic Enforcement Plan identified as one of its top priorities the regulation of overly broad separation agreements that allegedly interfere with employees’ Title VII rights to file discrimination charges. Recently, the agency sued several employers for using what appear to be fairly standard separation agreements. The EEOC’s lawsuit against CVS, which has received the most attention, was dismissed last month when an Illinois federal court granted CVS's Motion for Summary Judgment on procedural grounds. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 14-cv-863 (N.D.Ill.2014).  While this was a technical ruling, it bodes well for employers that this standard separation agreement was not invalidated, and in fact, the Court appeared to criticize the agency’s case on the merits. Nonetheless, we do not expect the EEOC to back off from its new aggressive position, and employers should conduct a careful review of their separation agreements.

The CVS case was closely followed by employers and employment law attorneys alike because the terms of CVS's Severance Agreement are commonly used in separation agreements, namely, a cooperation clause, a non-disparagement clause, a confidentiality requirement, and a release with a covenant not to sue. The EEOC argued that the agreement was overly broad, misleading, and unenforceable because it interfered with an employee’s right to file a charge, even though the agreement provided that it did not prohibit the employee from participating in an investigation by a federal, state, or local agency that enforces discrimination laws. This disclaimer language is routinely included in separation agreements, and was previously deemed enforceable by the EEOC.  As such, many employers’ separation agreements were put in jeopardy by this case. If these terms were declared unenforceable, the incentive for most employers to pay employees monetary settlements in exchange for a release of claims and an agreement to not sue would be lost. In view of this dismissal of the EEOC's lawsuit, this will not be the case—for now.

The Court did not reach the issue of whether or not the terms of CVS's Severance Agreement are enforceable.  Instead, the lawsuit was dismissed on the ground that the EEOC did not fulfill the administrative prerequisite of attempting to conciliate with CVS before filing the suit.  Still, the judge added footnotes, that although not binding authority, seemingly do not bode well for the EEOC’s position. The judge noted the disclaimer to CVS’s general release language, the passage protecting the individual’s right to participate in agency proceedings, and reasoned that the language plainly encompasses the employee’s right to file an EEOC charge.

Notwithstanding the procedural defeat in this case, the EEOC has indicated that it continues to hold to its position, and may appeal the dismissal to the 7th Circuit. Looking ahead, we will wait and see what happens with the EEOC’s lawsuit in Denver against College America for its use of a severance agreement that also has non-disparagement as a condition for paying severance, and required that employees represent that they have no pending claims, including administrative actions, against the company. Ironically, the employee at issue in the College America case filed three EEOC charges after she signed the purportedly restrictive agreement. In the meantime, it is more important than ever for employers to have a well-crafted and comprehensive separation agreement that will withstand challenge.

Sara Dajani is an associate attorney with Berenzweig Leonard, LLP. She can be reached at sdajani@berenzweiglaw.com.

Can You Fire An Employee for A Facebook “Like”?

Since the arrival of social media sites such as Facebook and Twitter, employers have worried about protecting themselves from disparaging comments by their employees. Meanwhile, the National Labor Relations Board (NLRB) has intensified its scrutiny of employers’ social media policies and whether such policies prohibit employees from discussing the terms and conditions of their employment. The National Labor Relations Act (NLRA) gives employees the right to act together “to improve terms and conditions of employment or otherwise improve their lot as employees,” and social media has become one of the main avenues through which employees do so. An employer who violates this right and disciplines or fires an employee for engaging in protected activity faces big penalties, including having to reinstate the employee.

In a series of rulings over the past few years, the NLRB has taken the position that social media sites are “virtual water coolers,” and whatever employees have a right to discuss around the workplace with respect to the terms and conditions of employment, they may also discuss on social media. In an August 22, 2014 decision, the NLRB decided that “liking” a Facebook post that deals with working conditions is also “protected concerted speech.” Three D, LLC (Triple Play), 361 NLRB No. 31 (2014). The NLRB found that Triple Play Sports Bar and Grille violated the NLRA when it terminated two employees for participating in a Facebook discussion about the additional state income taxes they owed because of the employer’s withholding mistakes, including the one who had only “liked” the post.

The NLRB concluded that the Facebook discussion was protected activity because “the purpose of [the] employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation….” The judge found that the employee’s “like” “expressed his support for the others who were sharing their concerns and therefore ‘constituted participation in the discussion that was sufficiently meaningful as to rise to the level of’ protected, concerted activity.” In balancing the interest of Triple Play’s owners in preventing harmful comments by their employees, the NLRB held that the comments were not “so disloyal” as to lose protection under the NLRA.

The NLRB also reviewed Triple Play’s Internet/Blogging Policy, and found that restricting online communications involving “confidential or proprietary information about the Company, or…inappropriate discussions about the company, management, and/or co-workers” violated the NLRA because it could reasonably include protected discussions. While the NLRB acknowledged that the policy did not “explicitly restrict protected activity,” it was still problematic because employees could reasonably interpret it as “proscribing any discussions about their terms and conditions of employment [that the employer] deemed ‘inappropriate.’”

As this decision makes clear, because a “like” standing alone can be protected, employers should tread carefully when considering taking action against employees for their social media activities and employer social media policies should be narrowly tailored to avoid prohibiting protected discussion. The NLRB will likely continue to scrutinize employer social media policies, and now is the time for employers to assess how to properly limit and respond to employees’ social media use.

Sara Dajani is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Sara can be reached at sdajani@BerenzweigLaw.com. 

Depressed Employee Wants Irregular Work Hours

A budget analyst for the Department of Agriculture with a long history of severe depression asked the agency for permission to work irregular hours each day depending on how she was feeling on a given day.  On some days, the depressed employee woke up too sick to work until the afternoon, when her condition would improve and she could get her work done; on other days, she was able to work in the morning but then had to stop in the afternoon when her depression got too bad.  Although she missed a lot of time at work due to her illness, the employee always completed her assignments on time and there were no complaints about her work product.  Even so, the agency insisted that she be at work during regular hours like her colleagues, and they denied her request for an irregular schedule.

The employee sued for disability discrimination, arguing that as long as she got her work done, it should not matter when during the day she did her work.  The agency countered that it should be able to insist that its employees be at work during normal set hours each day.

The employee’s position prevailed.  The federal appellate court for the District of Columbia recently ruled that an irregular schedule, such as the one sought by the budget analyst in this case, can be an appropriate accommodation under federal disability law.  The appeals court rejected the agency’s argument that irregular work schedules pose a per se unreasonable burden on employers.  Rather, there must be a fact-specific inquiry done on a case-by-case basis to see whether an irregular work schedule will work in a particular workplace for both the employer and disabled employee.  The appeals court noted that technological advances and the expansion of teleworking have already contributed to a more flexible work schedule for many employees.

Most companies want the discretion to set regular work hours for their employees, and this decision still allows them to do so as long as companies can show that a predictable work schedule is essential to the job an employee is doing.  In other words, companies need to be able to explain why it is critical for all employees, even disabled ones, to work during set hours.  Some reasons might include fostering workplace discussions or ensuring that employees are responding to client communications in a reliable and timely manner.  Such reasons should be conveyed to any employee who is seeking a deviation from his or her normal work schedule.

Declan Leonard is a Managing Partner of Washington, DC area business law firm Berenzweig Leonard, LLP. Declan can be reached at DLeonard@BerenzweigLaw.com.

Company Cannot Prohibit Employees From Disclosing The Personal Contact Information Of Other Employees

Tiffany & Company, the famed jewelry store, has a confidentiality policy that states, among other things, that its employees are prohibited from publicly disclosing other Tiffany employees’ contact information, including their names, addresses, telephone numbers, and e-mail addresses.  Though Tiffany is a non-union workplace, its policy recently came under scrutiny by the federal National Labor Relations Board (NLRB) after it received a complaint that the policy could interfere with an employee’s federally protected right to make the workplace better.  Tiffany countered that employment records are proprietary to the company, and allowing public disclosure of personal contact information could violate the privacy rights of its employees.

Tiffany’s policy was recently deemed unlawful.  According to the NLRB, the policy could prevent an employee of Tiffany from sharing co-worker information with a prospective union potentially looking to organize the workforce at Tiffany.  There was no evidence presented of any such union activity afoot at Tiffany, but the NLRB found that the mere existence of the confidentiality policy might chill an employee from collaborating with a union to organize at Tiffany.  The NLRB did caution that an employee would not be permitted to unlawfully access Tiffany’s employment records to get the contact information.  But if the employee was able to obtain employee contact information in the normal course of work, Tiffany cannot have a policy that prohibits the employee from publicly disclosing that information.

This is yet another case that reflects a growing trend in decisions by the NLRB of clamping down on companies that seek to restrict employees’ public discussion of workplace matters.  Companies need to carefully review their handbook and employee contract provisions to make sure they can withstand legal scrutiny by the federal government.

Declan Leonard is a Managing Partner of Washington, DC area business law firm Berenzweig Leonard, LLP. Declan can be reached at DLeonard@BerenzweigLaw.com.

FBI’s More Rigorous Physical Testing For Male Applicants Deemed Unlawful Gender Discrimination

All new applicants for the FBI have to pass a physical fitness test in order to be hired as an agent.  Men have to do a minimum of 30 push-ups, while female applicants only have to do 14 push-ups.  A male applicant, who had been selected “leader” and “spokesperson” of his applicant class by his peers, passed all other tests to become an agent with the FBI.  But he could only do 29 push-ups—one shy of the minimum requirement-- and therefore, he did not get an agent position with the FBI.  

He sued, arguing that the FBI’s higher push-up requirement for men than women was discriminatory.  The FBI responded that the different push-up requirement merely reflects the innate physical differences between men and women, and the FBI needs to ensure that all new agent hires have the requisite physical stamina to do the job.

A federal judge in Alexandria, Virginia found that the higher push-up requirement for male applicants was indeed discriminatory based on gender.  The judge recognized that in some instances, it might be permissible to have different physical fitness tests for men and women where the job requires men to exert more physical strength and stamina than women.  But in this case, the FBI expects both male and female agents to perform the same physical tasks at the same level of job performance.  Furthermore, the FBI does not require ongoing physical fitness testing by agents after they are hired.   Therefore, the FBI could not justify its policy of making men do more push-ups than women in order to be hired for the same position.

Declan Leonard, Managing Partner of Berenzweig Leonard, LLP, can be reached at DLeonard@BerenzweigLaw.com.

Employee’s Facebook Posting Not Enough To Put Her Employer On Notice Of Sexual Harassment

A restaurant employee, who claimed she was groped and fondled by a fellow employee, posted her complaints about the poor working conditions at the restaurant on Facebook.  The Facebook page was one that had been set up by employees of the restaurant to communicate about scheduling issues, but it also contained posts on problems in the workplace.  The employee conceded that she did not directly inform management at the restaurant about the sexual harassment prior to her termination, but she said that posting her complaints on the employee Facebook page was enough to put the restaurant on notice of what was going on.  She sued the restaurant for sexual harassment.

A federal judge in Indiana ruled that simply posting the complaints on a Facebook page set up by restaurant employees was not enough to show that the restaurant had notice of the conduct in order to find it liable, and dismissed the claim.  The judge noted that the restaurant employees made a concerted effort to keep restaurant management off of the Facebook page.  The judge also pointed to the fact that the restaurant had a specific handbook provision directing employees to report all incidents of harassment to management, and even had a hotline that employees could use for anonymous reporting.  Because the employee did not follow these established procedures for reporting the harassment, the judge refused to hold the restaurant liable.

This case underscores just how important it is for employers to have an established written policy for employees to use to report complaints, and to make sure that the policy is followed.

Posted by Declan Leonard, Managing Partner of Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Company Facing Age Discrimination Claim after Offering Conflicting Reasons for Terminating Employee

James Pierson worked at the Tennessee plant of a large national printing company for nearly forty years, when he was suddenly laid off at the age of 62. The company initially told Pierson that his layoff was due to a company-wide cost-cutting move, and that others were also being laid off to save the company money. But a human resource manager at Pierson’s plant prepared a document in support of the layoff that described Pierson as not being a “team player” and as lacking good interpersonal skills. At no time did anyone at the company mention Pierson’s age or longevity at the company as a reason for the layoff.

Pierson sued the company for age discrimination, but a Tennessee federal court dismissed the case prior to trial because Pierson was not able to point to any statement or document where the company took his age into account during the process of the layoff. Pierson appealed the dismissal of his case, and he won the appeal.

The federal appeals court in Tennessee ruled that because the company offered several different reasons to justify its decision to lay Pierson off, a reasonable jury could infer that these shifting reasons were intended to cover up the real reason for his lay-off: that being age discrimination. So even though there was no evidence of age discrimination presented to the court, the fact that the company did not speak with a unified and consistent voice as to why it laid Pierson off opened the company up to legal liability for age discrimination.

This case underscores just how critical it is for companies who are conducting a layoff or termination to be consistent from start to finish about why it is taking the personnel action. Even if the real reason for the termination is poor performance or misconduct by the employee, the company needs to make that reason clear at each phase of the separation process, or risk potentially exposing itself to legal liability for discrimination.

Declan Leonard is a Managing Partner of the business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Daughter’s Facebook Post Reveals Father’s Breach of Settlement, Costing Dad $80,000

Confidentiality clauses are typical in settlement, severance, and separation agreements, as employers typically want to avoid a situation where a former employee openly discloses the amount of a settlement or severance payment. Employers often offer significant monetary consideration in exchange for, among other things, the employee’s discretion. Recently, a Florida appeals court found that a former school headmaster violated the terms of a confidential age discrimination settlement with the school, after his daughter jokingly mentioned the settlement in a Facebook post saying “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The settlement required the employee and his wife not to reveal the existence and terms of the settlement agreement to anyone other than their attorneys or professional advisers. As a result of his daughter’s gleeful disclosure, the employee’s payout was reduced by $80,000!

For employers, this case highlights the importance of including confidentiality language in settlement agreements which clearly communicates what conduct is prohibited and who can learn information about the settlement. In addition, if an agreement indicates that others are expressly permitted to learn of the agreement’s terms, such as a spouse or immediate family member, it is prudent to also specify that a breach by any of those individuals will be considered a breach by the employee, and as a result, will subject the employee to the same penalties. Moreover, adding an express reference to social media may be worthwhile. The agreement at issue in the Florida case did not, and it took two courts to finally determine, much to dad’s chagrin, that disclosure on Facebook constituted a breach.

The case also shows a willingness of courts to enforce reasonable confidentiality terms, especially in a situation where the result of the breach is exactly the type of harm the company sought to prevent. When considering what types of penalties to include for a breach, it is important to ensure that the penalty is not oppressive and/or punitive. In this case, the company paid the employee the agreed-upon back pay and attorneys’ fees and sought only to recover the amount provided for punitive damages. However, a court may be less likely to enforce a penalty for a breach that goes well beyond the amount contemplated by the settlement agreement.

Lastly, as this case demonstrates, even inadvertent disclosures, whether online or in some other forum, can prove costly and result in legal and financial liability. Consequently, companies should take proactive steps to prevent such disclosures. For instance, companies should put physical and electronic safeguards in place to protect confidential information, only disclose confidential information to employees with a need to know, and if such information is disclosed, ensure that employees understand their obligations to keep the information confidential.  Following basic rules and common sense can avoid odd conclusions the dad was forced to live with in Florida.

Sara Dajani is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Sara can be reached at sdajani@BerenzweigLaw.com.

EEOC Takes Aggressive Position On Severance Agreements

The Equal Employment Opportunity Commission (“EEOC”) recently filed a lawsuit against one of the nation’s largest pharmacy chains, CVS, claiming its separation agreements violate Title VII of the Civil Rights Act. This action by the EEOC is surprising and significant, since the targeted provisions are ones that are commonly found in severance agreements. According to the lawsuit, the EEOC claims that CVS conditioned payment of severance benefits on execution of severance agreements that contained overly broad, misleading, and unenforceable language that unlawfully prevents employees from communicating with the agency or filing discrimination claims. In its lawsuit, the EEOC claims the following provisions of the agreement violate Title VII:

• A cooperation clause requiring employees to notify the company of contacts relating to legal proceedings;
• A non-disparagement clause;
• A non-disclosure of confidential information clause; and 
• A general release and covenant not to sue clause.
  

The EEOC is seeking a permanent injunction prohibiting CVS from restricting the rights of former employees to file charges or participate in agency proceedings, reformation of CVS’s separation agreement, and for CVS to provide 300 additional days for any former employee who signed the agreement to file administrative charges.

The EEOC claims that being able to bring charges and communicate with employees plays a critical role in the EEOC’s enforcement policy because it informs the agency of employer practices that may be unlawful. An employee’s right to communicate with the EEOC is protected under federal law, and therefore, the EEOC claims that when employers have language similar to that found in CVS’s severance agreements, it has the effect of buying an employee’s silence regarding discriminatory practices.

The EEOC’s claims are a departure from its prior position in which it previously determined similar language was in compliance with Title VII. In fact, CVS modeled its severance agreements with language the EEOC previously found compliant in an earlier lawsuit. This can be rightly viewed as an overreach by the EEOC to strike down provisions of severance agreements that are used almost universally by employers and have been previously approved by the agency.

If the EEOC is successful in this lawsuit, employers will need to revisit their severance agreements and make any necessary changes to comply with the court’s decision. However, unless the court strikes down the provisions in the case, or another court acts otherwise, we are not currently recommending a drastic departure from our prior severance agreements based on this lawsuit. While we believe it is unlikely that the EEOC will be successful on all of its claims against all provisions of CVS’s agreements, this new aggressive stance by the agency is a good reminder to employers to always revisit severance agreements to ensure they are legally compliant, and consider taking steps to avoid similar claims.

Nick Johnson is an attorney with Washington, DCbusiness law firm Berenzweig Leonard. He can be reached at njohnson@BerenzweigLaw.com. 

NLRB Continues the March Madness by Recognizing College-Athletes as Employees

Yesterday, the Chicago regional office of the National Labor Relations Board (“NLRB”) issued a decision that could dramatically change the landscape of college athletics as we know it today. The Regional Director for the NLRB found that scholarship football players at Northwestern University are considered employees within the meaning of the National Labor Relations Act (“NLRA”), and therefore, eligible for union representation. This drastic departure from the traditional notion of a student-athlete will almost certainly be appealed and litigated for years to come.

In reaching its conclusion, the Regional Director defined an “employee" as "a person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment." The RD found that the scholarship football players performed valuable services for the university that resulted in Northwestern generating approximately $235 million in revenue over a nine year period. The RD found that these players were compensated in the form of tuition, fees, room and board up to $76,000 per year and that the “tender” they signed before being granted a scholarship was akin to an employment agreement. The RD also found the players are subject to the university’s control taking into consideration the fact that players devoted almost 40-50 hours of their time each week to football-related activities and the coaches exercised control over most aspects of the players’ private lives, including living arrangements, outside employment, and even Internet postings.

The university argued that the scholarship football players were analogous to graduate assistants, who were previously found by the NLRB to not be employees. The Regional Director distinguished this argument by finding that football players are not primarily students given their time commitment to football-related activities, the fact that their athletic duties did not constitutes a core element of their educational degree, and ultimately found “that the overall relationship between the graduate assistants and their university was primarily an educational one, rather than an economic one.”

The Northwestern football players are seeking to bargain for guaranteed scholarships, post-career medical benefits, and limited contact for practices. If this ruling is upheld, players would now be able to bargain for additional matters such as allowing athletes to accept endorsements while in school or even being paid for playing collegiate athletics. As we’ve seen with professional sports, collective bargaining can also lead to player strikes and lock outs, which has canceled seasons in their entirety in the event players and universities are at an impasse.

Though this could lead to a significant change in college athletics, the decision is limited to scholarship players (not walk-ons) at private schools. Public universities comprise the vast majority of FBS Division I teams, and they would need to follow their own state’s laws related to collective bargaining. However, the ripple effects of this decision could lead to other employment related consequences, such as a determination that players are considered “employees” under the FLSA, thereby entitling them to back wages and potential overtime claims, workers compensation claims from football-related injuries, and unemployment compensation in the event a student is cut from the program.

In our opinion, this decision undermines the true meaning of collegiate student athletes – they are students first, and athletes second. By regarding students as “employees,” this administration is now taking the position that these players should be considered blue-collar workers. By treating students as blue-collar workers, the true reason for why they are at a given university – to receive an education – is eroded even further, if not entirely as universities will now view their players purely through economic lenses and measured by the revenue they bring in.

A more practical approach to solve this dilemma may be to set up an educational trust for these athletes. Revenue generated from collegiate programs could go into a trust that is set-up exclusively to benefit these athletes’ continued educational pursuit. The vast majority of collegiate athletes will not go on to play professionally and by setting up a trust that can be used to pursue graduate and doctoral degrees, you are incentivizing these athletes to continue their education, and using their prior athletic commitment as a means to fund that pursuit. This is just one of the alternatives we feel is better than throwing blue collars on these student athletes and leaving the majority of them at the end of their collegiate career without any means to pursue a career in anything other than sports. The government should not pigeonhole these student athletes into the football field or basketball court, but rather, promote incentives that allow these players to continue their educational pursuit beyond their playing days.

Nick Johnson is an attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at njohnson@BerenzweigLaw.com.

Are You Committing Data Theft at Work Without Even Realizing It?

Violating the Virginia Uniform Trade Secrets Act (VUTSA) is easier than you might think. A federal court recently held that an employee downloading company information to an external storage device or emailing it to a personal email address may be liable for trade secret theft regardless of whether that information is actually used in an improper way. Something as casual or seemingly innocuous as using a flash drive to bring work home could implicate Virginia’s uniquely broad trade secret theft statute.

In Marsteller v. ESC Federal, Inc., a government contractor notified an employee that she was being terminated. Prior to her termination, the employee, who had signed an agreement requiring her to hold proprietary company information “in strictest confidence,” downloaded information to an external storage device and emailed it her personal email account as well. She was sued by her former employer for VUTSA violations. Although there were no allegations that Marsteller actually used the proprietary information that she downloaded and emailed to herself, the U.S. District Court for the Eastern District of Virginia held that allegations of improper acquisition alone are sufficient for a VUTSA claim to survive a motion to dismiss.

In Virginia, “improper acquisition” is described as “theft, bribery, misrepresentation, use of a computer or computer network without authority, breach of a duty or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means.” While that list is comprised of obviously unacceptable means of acquiring information on its face, the Marsteller decision gives broad applicability to the “use of a computer or computer network without authority” aspect. Something as simple as downloading proprietary company information onto a thumb drive (which may be proscribed by your employment agreement), at least in Virginia, may leave you open to liability for trade secret theft, whether you make improper use of that information or not.

Frank Gulino is an associate attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at fgulino@BerenzweigLaw.com.

Did Boss's Shoulder Touching and Suggestive Comment Constitute Sexual Harassment?

A female sales manager for an office furniture company alleged that on two separate occasions, her male supervisor acted inappropriately while driving her back to her hotel after company-sponsored training sessions. In the first instance, the pair had been at dinner with a group of co-workers when the supervisor insisted on driving the female employee back to the hotel. During this drive, the supervisor reached his arm around the female employee who was sitting in the passenger seat, and he put his hand on her right shoulder where he left it for about a minute. During the ride, the supervisor is alleged to have said that he had done a lot to get the female employee the job, and that she owed him to do “the right thing by him.” A few nights later after a similar post-training group dinner, the supervisor again insisted on driving the female employee back to the hotel. He again extended his arm to put his hand on her right shoulder, leaving it there for most of the fifteen- to twenty-minute drive back to the hotel.

The female employee was eventually fired for poor performance in a decision made by the male supervisor, and she then sued the company for sexual harassment. But her claim for sexual harassment was dismissed. A Massachusetts federal appeals court acknowledged that it would be “uncomfortable” for a female employee to have her male supervisor’s unwelcome arm around her while commenting that she owed him for hiring her. But the court noted that the two incidents ended quickly, and for the next ten months of employment there was no allegation of further inappropriate conduct by the supervisor. Citing the well-established legal standard for hostile work environment claims, the court concluded that the supervisor’s objectionable conduct was not pervasive by any measure, and that compared to other sexual harassment cases that had come before that court, this case was not even close.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com. 

Supervisor’s Comment About Employee Was Not Evidence Of Age Discrimination

An IBM employee with a spotty performance record claimed his firing was the result of age discrimination.  As evidence, he produced a text message between two HR managers at IBM in which one asked about the employee’s “shelf life.”  The fired employee also claimed that an employee retention program at IBM called “Project Blue” was an allusion to blue rinses used by older people.  After being sued, IBM denied the allegations of age discrimination and claimed the employee’s firing was the result of his poor performance record.

A federal appeals court in Oklahoma recently found in favor of IBM and dismissed the employee’s age discrimination case.  The appeals court acknowledged that the “shelf life” comment could be interpreted as an age bias statement, but there was a more innocent explanation for why the HR manager used that phrase relating to the employee’s pending billable workload that the court found more plausible.  And the court outright rejected any age bias associated with the name “Project Blue,” given that IBM is sometimes referred to as “Big Blue.”

While IBM ultimately prevailed, this case is a good example of how managers who handle employment matters need to be extra careful about what they put in writing and be sensitive about how phrasing that is intended as innocuous could be interpreted as being discriminatory.

Declan Leonard is a managing partner at DC regional business law firm, Berenzweig Leonard, LLP. Declan can be reached at dleonard@berenzweiglaw.com.

EEOC’s Policy On Employee Criminal Records Scrutinized

The Equal Employment Opportunity Commission (EEOC) announced last year a new enforcement guidance under Title VII of the Civil Rights Act of 1964 to employers regarding the use of arrest and convictionrecords in employment decisions. Though there is no federal law prohibiting an employer from asking about arrest and/or conviction records, this recent guidance informed employers that even a neutral and uniformly applied “policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some minority groups protected under Title VII, and may violate the law if not job related and consistent with business necessity.” If a background check is in fact necessary, the EEOC recommended that the policy at least consider “the nature of the crime, the time elapsed, and the nature of the job, and then provide an opportunity for an individualized assessment for people excluded.”

This guidance left employers in quite a dilemma, as on one hand if employers continued to uniformly use neutral background checks on all employees, they may run the risk of being subject to a disparate impact lawsuit. On the other hand, refusing to conduct background checks may be problematic as they have played a vital role in enabling employers to comprehend employees’ criminal history in an effort to avoid liability for criminal or fraudulent acts committed by employees and/or avoiding claims of negligent retention.

Faced with this predicament, a recent federal court in Baltimore cast serious doubt on the EEOC’s background check guidance. In the case, the EEOC filed a lawsuit against a corporate events provider that had a uniformly applied policy of running background checks on all prospective employees prior to commencing employment. The EEOC challenged this policy claiming that it had a disproportionate effect on minorities due to the higher statistical incarceration rates for minorities. The court dismissed the case on summary judgment in favor of the company due to the unreliability of the EEOC’s witnesses; however, the judge went out of his way to state his strong disdain for the EEOC’s guidance. Specifically, the judge noted that the EEOC’s guidance places employers in an unworkable position due to the inherent risks that can come from ignoring criminal history checks and employers should not have to second guess their decision to obtain fundamental information on their potential workers.

Although this opinion casts doubt on the EEOC’s enforcement of background checks, this opinion does not affect the guidance itself and best practices suggested by the EEOC. Unfortunately, there is no bright line rule governing background checks and companies should be sure to consult with an attorney before implementing a background check policy that could include criminal history or credit checks.

Nick Johnson is an associate attorney with Berenzweig Leonard, LLP, a DC regional business law firm. He can be reached at njohnson@BerenzweigLaw.com.