UNITED STATES SUPREME COURT BROADENS EMPLOYER LIABILITY IN EMPLOYMENT DISCRIMINATION CASES
In Staub v. Proctor Hospital, a decision rendered on March 1, 2011, the United States Supreme Court concluded that an employer can be held liable for the discriminatory animus of an employee who simply influenced the employment decision, even if that employee did not make the ultimate employment decision.
In this case, the fired employee sued Proctor Hospital for anti-military bias under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which prohibits employment discrimination based on military membership or obligation. The employee showed evidence that two supervisors disliked his role in the U.S. Army Reserve, which occasionally took him away from work.
The Supreme Court held the employer liable, even though the two supervisors did not make the ultimate decision to fire the employee. In holding the company liable, the Court concluded that the employee’s termination was the intended consequence of the supervisors’ discriminatory conduct. In other words, when the ultimate decision maker’s decision to terminate or otherwise take an “adverse employment action” against an employee is tainted by the influence of a biased lower-level employee who intended to cause harm to the affected employee, the employer may be held liable for that personnel decision.
Even though this case involved USERRA, a relatively little-used statute, its implications are expected to reach other, more prevalent anti-discrimination statutes, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA).
This case underscores the need for ultimate decision makers to investigate the underlying information and reason(s) given to him/her by lower level managers or supervisors in making personnel decisions, in order to ensure that that information and those reason(s) are legitimate, and not based on discrimination, retaliation or other unlawful motive(s).
PLAINTIFF WHO DISCUSSED A LAWSUIT WITH HER ATTORNEY USING COMPANY’S E-MAIL CANNOT CLAIM ATTORNEY-CLIENT PRIVELEGE
A California state appeals court recently ruled that a woman who sued her employer claiming discrimination cannot shield the e-mails she sent to and received from her lawyer in the litigation because they were sent from her work e-mail account. The court concluded that the e-mails were not a protected confidential communication (in other words, they were not protected by the attorney-client privilege) because the woman’s employer had warned that employee e-mails were not confidential and were subject to monitoring.
In contrast, in March, 2010, the New Jersey Supreme Court protected e-mails sent from a personal account on a work computer to a lawyer. The court noted that the e-mails weren’t clearly covered by the employer’s policy, and that they contained a warning that they were confidential attorney communications.
To date, no New York court has ruled on the confidentiality of attorney-client e-mails sent to or from a workplace computer.
There are two lessons here, one for employers, and one for employees. For employers, it is important to have a well-written computer, internet and e-mail policy which states that the company’s computer and e-mail systems are only for business, and not personnel, use. In addition, the policy should state that there is no right to privacy in anything stored in, sent over, or received on the company’s computer or e-mail system(s), and that the company has the right to retrieve and read any e-mail messages sent or received over its computer and e-mail system(s).
For employees, the lesson is much simpler: do not send any personal e-mail messages, and in particular any messages that you wish to keep confidential (whether to a family member, friend, physician, attorney or otherwise), using your employer’s computer or e-mail system. This includes not only desktop computers, but laptops, tablets and smart phones issued by your employer as well.
In January, 2011, the United States Supreme Court, in Thompson v. North American Stainless, held that an employee can claim retaliation even for simply being associated with another employee who engaged in protected activity.
The case involved an employee of North American Stainless, Miriam Regalado, who was engaged to another employee, Eric Thompson. Three weeks after Ms. Regalado filed a charge against the company with the Equal Employment Opportunity Commission (EEOC) alleging gender discrimination, Mr. Thompson was fired.
Mr. Thompson then filed a complaint of retaliation. However, in order to be a victim of retaliation, one must engage in “protected activity”. In this case, Mr. Thompson himself did not do so – rather, it was Ms. Regalado who filed the discrimination charge with the EEOC
Despite this, the Supreme Court found that the company committed unlawful discrimination when it terminated Mr. Thompson. In doing so, the Court held that firing a loved one of an employee who engaged in “protected” activity may very well dissuade a similar employee from filing such a charge. Thus, the Court concluded, the termination of Mr. Thompson was retaliation as that term has been defined in the Supreme Court’s prior cases.
In addition, the Supreme Court found that Mr. Thompson had “standing” to sue, that is, was a proper party, because he was a “person aggrieved”. In doing so, the Court noted that he was an employee at the same company as his fiancé, who had filed the original complaint of discrimination, and the company fired him for the purpose of punishing that fiancé.
THE EQUAL EMPLOYMENT OPPORTUNITY (EEOC) REPORTS AN INCREASE IN DISCRIMINATION COMPLAINTS
A recent report from the EEOC shows that claims of discrimination in the workplace, whether based on gender, race or other so-called “protected classes”, soared to 99,922 in the year ended September 30, 2010. This represents a 7.2% increase over the 93,277 claims brought in the prior year, and is the highest level of new discrimination cases ever recorded.
The largest increase was from individuals claiming discrimination based on a disability, which may be linked recent changes in the legal definition of disability. These changes made the definition of what is a “disability” under the American with Disabilities (ADA) more expansive.
Most experts agree that the overall increase in discrimination claims is likely due to the high unemployment rate.
THE AMERICAN WORK FORCE IS GETTING OLDER
The United States Labor Department’s December, 2010 survey showed an increase of 7.6% in the number of people over the age of fifty-five (55) who held jobs, compared to the same time period in 2007, when the recession was beginning.
By contrast, there were fewer jobs held by people in all age groups under fifty-five (55). Overall, the number of people working was down by 4.9%.
Thirty (30) years ago, one in seven jobs was held by a person who was fifty-five (55) or older. Today, the number of jobs held by such persons is one in five.
There are numerous possible reasons for this. First is changing demographics. There are simply more older, healthy persons today than there were thirty (30) years ago. Second, it appears that fewer older workers with jobs are willing to retire, most likely because of the decrease in their retirement accounts. Third, more younger people are furthering their education and thus postponing entering the job market.
NEW YORK’S NEW “WAGE-THEFT PREVENTION” ACT
On December 13, 2010, New York Governor David Paterson signed into law the “Wage Theft Prevention Act”, which provides new and expanded protections for workers under the New York State Labor Law. The new law will become effective in 120 days, or on or about April 12, 2011.
New York State Labor Law §195 currently mandates that employers inform all new hires of their regular rate of pay, pay day, and overtime rate, if applicable. Information on Labor Law §195 may be found at http://www.labor.state.ny.us/formsdocs/wp/LS52.pdf.
Employers must obtain written acknowledgment from new employees that they have received this information. The New York State Department of Labor has promulgated forms to be used for this purpose, which can be found on its website, at http://www.labor.state.ny.us/formsdocs/wp/LS57.pdf.
Under the new law, the written notice must include additional information, such as the method of payment (i.e. by the hour, shift, week, salary, piece or commission), as well as whether any allowances will be claimed as part of the minimum wage, such as for tips, meals, and/or lodging.
In addition, the new law requires that employers provide employees with a notice reiterating their pay rate and other mandated information (with written acknowledgment) prior to February 1 of each year.
Furthermore, employers must provide a written notice at least seven (7) days prior to the implementation of any changes to the information contained in the employee’s most recent notice, unless the modifications are reflected in the employee’s wage statement. Consistent with present requirements for payroll records, employers must maintain all required notices, statements and acknowledgments for six (6) years.
The new law increases the potential liquidated damages for failure to pay proper wages from the current twenty-five (25%) percent to one hundred (100%) of unpaid wages, unless the employer is able to show that it had a “good faith basis” that the method of payment was lawful. Thus, New York law now matches the federal Fair Labor Standard Act (FLSA) with regard to potential assessment of liquidated damages.
Finally, any employee not provided with the new hire notice within ten (10) business days of his or her start date may bring a claim to recover $50.00 for each workweek that a violation occurs, up to $2,500.00, plus attorneys’ fees. For violations relating to a current employee, the employer may be liable for damages up to $100 per week, not to exceed $2,500.00, plus attorneys’ fees.
Although businesses also face criminal liability for violations of the New York State Labor Law, only corporations and their officers/agents where subject to criminal penalty under the old law. The new Act extends coverage in this regard to both partnerships and limited liability corporations.
SOUTHERN DISTRICT OF NEW YORK ADOPTS AUTOMATIC MEDIATION FOR EMPLOYMENT DISCRIMINATION MATTERS
Under a new rule adopted by the Federal District Court for the Southern District of New York, effective January 3, 2010 all employment discrimination cases, except those brought pursuant to the Fair Labor Standards Act (FLSA), will be automatically referred to the court’s alternative dispute resolution program. The magistrate judge overseeing a particular case may exempt that case from automatic referral.
The Southern District of New York covers the counties of New York, the Bronx, Westchester, Dutchess, Orange, Putnam, Rockland and Sullivan.
THREE THINGS EVERY WORKPLACE VIOLENCE PLAN SHOULD CONTAIN
Unfortunately, it seems that incidents of workplace violence are becoming more and more common these days. While a company can never fully protect itself from such incidents, having a comprehensive workplace violence plan in place, and disseminating it to employees, may help prevent many such incidents.
While such a plan should be carefully tailored to your company’s needs, there are three things that should always be in any such plan.
First, each such plan should have a policy statement. This statement should define what constitutes workplace violence, and what the company will do to with reports of workplace violence.
A policy statement notifies employees which specific behaviors will not be tolerated, and that threats or harassment of any type are forbidden. As in an anti-discrimination/anti-harassment policy, it also provides a guide for reporting such incidents, threats, harassment and/or other improper behavior to management and/or human resources.
Workplace violence plans should also contain a response plan. This will set forth what will occur after a report of a potential violation of the company’s workplace violence policy has been reported. Such a plan will clearly state how the company will handle such reports, through such things as an investigation, discussions, meetings, training and potential discipline.
It is important that once such a response plan has been established, the company follows it. This will ensure confidence in the plan by employees, will best ensure that such incident(s) are resolved, and may protect the company from future litigation and/or exposure to liability.
Finally, a workplace violence plan should contain a training program. This should train employees, including and especially members of management, spotting and reacting to potential incidences of workplace violence.
RECENT AMENDMENTS TO THE NEW YORK STATE WORKERS ADJUSTMENT AND RETRAINING NOTIFICATION (WARN) ACT
The New York State Workers Adjustment and Retraining Notification (WARN) Act, which went into effect on February 1, 2009, requires employers to provide 90 days notice prior to a plant closing, mass layoff or relocation. Notice must be provided to affected employees and their representatives (i.e. their collective bargaining unit), the New York Department of Labor and the local workforce investment board. The State WARN Act applies to private employers with fifty (50) or more workers who lay off at least twenty-five (25) employees, excluding part-time employees. Violations are subject to civil penalties and back wages.
There are certain exceptions set forth in the statute, such as when the need for notice was not reasonably foreseeable at the time the notice would have been required, or if the closing or layoff was due to a natural disaster.
On August 31, 2010, the New York State Department of Labor adopted new regulations implementing the state WARN Act. These new regulations included the following changes: (1) directors, officers and shareholders are exempt under the new regulations; (2) the number of employees is counted as of the date the first notice under the Act must be given; (3) when an employer asserts a defense or an exception to the Act’s requirements, the employer must provide documentation in support of the exemption; and (4) paying employees over the period of the violation does not exempt the employer from the civil penalties under the Act.
In addition, the new regulations change the language of the notice to be given to affected employees, change the procedure for the rescission of notices for mass layoffs, and change the procedure for an administrative review by the Commissioner of the New York State Department of Labor.
If you have any questions regarding the Act, please feel free to contact The Law Offices of David S. Feather.
NATIONAL LABOR RELATIONS BOARD PROPOSES NEW POSTING RULE
The National Labor Relations Board (NLRB) just announced a proposed rule requiring businesses to post notices in break rooms to inform employees of their right to bargain collectively, distribute union literature or engage in other union activities without reprisal. The purpose of the postings, according to the NLRB, would be to increase knowledge of the National Labor Relations Act (NLRA) among employees, to better enable employees to exercise their rights under the NLRA, and to promote statutory compliance by employers and unions.
Members of the public can submit comments on the proposal for sixty (60) days, or until February 22, 2011.
