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.