SUPREME COURT RULES IN FAVOR OF WHITE AND HISPANIC FIREFIGHTERS

Posted on June 29, 2009 by Daniel Burnick

This morning, the U.S. Supreme Court, in a 93 page 5-4 opinion, reversed the lower courts' decision in the case of Ricci v. DeStefano.  I previously wrote about this case on February 3 and April 22.  In Ricci, the white and Hispanic plaintiffs claimed that they would have been promoted if the city of New Haven Conn. did not invalidate the test results because no black candidates scored high enough to be promoted.  Justice Kennedy delivered the opinion for the Court, finding that the city's actions violated Title VII.

Initially, Justice Kennedy addressed the burden shifting provisions of Title VII: once a plaintiff establishes a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is job related for the position in question and consistent with business necessity.  If the employer meets that burden, the plaintiff may still prevail by demonstrating that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer's legitimate needs.  The Court found that the City's actions, not validating the test scores because the higher scoring candidates were white and Hispanic,  violated Title VII's disparate treatment prohibition. Without some other justification, the express, race-based decision making is prohibited by Title VII.  The Court decided the question of whether the purpose to avoid disparate impact liability excuses what otherwise would be prohibited disparate treatment discrimination.    The Court found that fear of litigation alone cannot justify the city's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.  Finally, the Court concluded that If, after it certifies the test results, the city faces a disparate impact suit, then in light of this decision, the city can avoid disparate impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.

Practice Pointers. 

1.  President Obama's nomination to the Supreme Court, Sonia Sotomayor, was on the 2nd Circuit panel which affirmed the district court's summary judgment in favor of the city which was reversed by the Supreme Court.  This decision will provide some ammunition for her critics.

2.  This opinion will be the starting point for employers who are worried about disparate impact claims.  Unfortunately, it may not provide all the answers, since each case will need to be decided on its own merits.

3.  Since the Court decided the case on Title VII grounds, and not on the Equal Protection Clause (which was also raised in this case), it is likely that this decision will apply to private employers as well as public employers.

Tags:

UNINTENDED CONSEQUENCES OF THE USE OF SOCIAL NETWORKING SITES

Posted on June 24, 2009 by Daniel Burnick

On May 1, I published an entry addressing social networking in the workplace.  Subsequent to that time,  I had the opportunity to give another presentation on social networking.  Some interesting questions were asked by attendees that raised additional issues that need to be considered by employers when their employees are using social networking sites for business purposes.  One company permits its workers to use social networking sites to communicate for business purposes after regular business hours.  This raises questions concerning the FLSA and overtime: if non-exempt employees are conducting company business from their personal computers/PDAs, after regular business hours, are they entitled to compensation, including overtime if they work more than 40 hours a week?  Are the employees "on call", thus entitling them to compensation?

Another issue is the ownership of the information exchanged between an employer and an employee on personal computers/PDAs: should someone leave their employment, can they use information on their personal computers/PDAs when they start working for someone else who is a competitor?  Is the information confidential if no steps are taken to make it confidential?

One question that was asked had ADA implications:  a supervisor learned from a social networking site that one of the employees was suffering from depression.  Did the supervisor have an obligation to report this to HR?  If so, did HR have an obligation to go through the interactive process with the employee to determine if the depression was impacting his ability to work?  If so, were there any reasonable accommodations that could be made?

Practice Pointer.  Technology is moving too fast for the courts to keep pace.  Answers to these questions, and many others, will take years to wind their way through the courts.  In the meantime, it is recommended that employers adopt appropriate policies and procedures concerning the use of social networking sites for company business, and confidentiality and ownership of information that may be on personal computers/PDAs. 

Tags: , , , , ,

FACEBOOK ALLOWS PERSONALIZED URLS: HOW TO PROTECT YOUR REGISTERED TRADEMARK

Posted on June 18, 2009 by Daniel Burnick

 Facebook, Inc. effective Saturday, June 13th, announced that users of the Facebook website will be allowed for the first time to create personalized URLs for their Facebook pages (facebook.com/yourname). There is a risk that some Facebook users will attempt to incorporate third party brands into their personalized Facebook usernames.

Facebook, Inc. has created an online form for rights owners of registered trademarks interested in preventing their trademarks from being registered as usernames by Facebook users.  Unfortunately, time to register your trademark has expired. 

Trademark owners, if there is an infringement on your trademark, can file their complaint on the Facebook platform by submitting relevant information to Facebook, Inc. through their trademark protection contact form. 

Practice Pointer.  If you have a registered trademark that you want to protect, I would recommend that you check Facebook on a regular basis in the event  someone else does is using your trademark. 

 

 

Tags: , ,

SUPREME COURT FINDS THE ADEA DOES NOT PERMIT MIXED-MOTIVES AGE DISCRIMINATION CLAIMS

Posted on June 18, 2009 by Daniel Burnick

Today, in Gross v. FBL Financial Services, Inc., the United States Supreme Court, in a 5-4 opinion, issued an opinion distinguishing the Age Discrimination in Employment Act (ADEA) from Title VII, finding that the text of the ADEA does not authorize a mixed-motives age discrimination claim.  The facts of the case are as follows:  Gross began working for FBL in 1971, and in 2001 he was a claims administration director.  In 2003, at the age of 54, he was reassigned to the position of claims project coordinator.  Many of Gross' job responsibilities were transferred to a newly created position: claims administration manager, which was filled by a female in her early 40's, who had previously been supervised by Gross.  Although the two positions paid the same, Gross believed he was demoted because of the reallocation of his former job responsibilities.  Gross filed a lawsuit alleging a violation of the ADEA, and at trial, introduced evidence suggesting that his reassignment was based at least in part on his age.  FBL alleged that the job reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills.  Gross was awarded $46,945 at trial, and the 8th Circuit reversed and remanded based FBL's challenge of the jury instructions given at trial, that the jury "must return a verdict for Gross if he proved , by a preponderance of the evidence, that FBL "demoted him to claims project coordinator' and that his 'age was a motivating factor' in FBL's decision to demote him".  The jury was also instructed that they must find for FBL "if it has been proved by the preponderance of the evidence that FBL would have demoted Gross regardless of his age". 

Justice Thomas, writing for the majority,  found that the burden of persuasion does not shift to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.  Justice Thomas further found that the ADEA is materially different with respect to the relevant burden of persuasion from Title VII, and as such, Title VII decisions do not control the construction of the ADEA.  Finally, the text of the ADEA does not authorize a mixed-motives age discrimination claim.

Practice Pointer.  This decision is favorable to employers in the ADEA context.  This interpretation will make it more difficult for plaintiff's to successfully prosecute ADEA claims.  It is important to remember that Alabama has it's own age discrimination statute, and that this opinion should also apply to cases pending in state court since the statute basically adopts federal law. 

Tags: , , , ,

CRIMINAL BACKGROUND CHECKS AND THE HIRING PROCESS

Posted on June 12, 2009 by Daniel Burnick

Recently, one of my partners, David Mellon, presented a talk entitled "Background Checks & Title VII: Discriination Lurking in the Shadows".  When a criminal background check is provided to an employer by a consumer reporting agency (CRA), the Fair Credit Reporting Act (FCRA), 15 U.S.C.Section 1681 et seq is applicable.  The FCRA creates obligations for both the CRA preparing criminal background reports and for employers using them.    A CRA may furnish a consumer report to an employer for employment purposes.  A CRA may not report arrests or other adverse information (other than convictions of crimes) that are more than 7 years old.  Before an employer (other than in the trucking industry) obtains a consumer report of criminal records from a CRA for purposes of employment decisions, the employer must do certain things, inlcuding providing the applicant with "clear and conspicuous disclosure" that the report may be obtainted for employment purposes, ensure that the disclosure is written in a document that consists only of the disclosure, and receive the applicant's written authorization to obtain the report. 

Recently, Law.com  reported that Bank of America Corp and Manpower Inc. were accused of discriminatory hiring practices when Manpower Inc. distributed fliers stating that qualified candidates "must be able to pass a background check and have no felonies or misdemeanors".  Although there is no federal law that specifically imposes any limitations on an employers' decision predicated on criminal records (although 4 states do, Hawaii, New York, Pennsylvania and Wisconsin), the EEOC has found that employer policies that reject job applicants with criminal records, even if they are neutral on their face, have a racially disparate impact.  In 1985, the EEOC issued a policy setting forth the business necessity standard for the consideration of convictions: 

     1.  The nature and gravity of the offesne.

      2. The time that has passed since the conviction and/or completion of the sentence.

      3.  The nature of the job.

The EEOC Policy Guidelines on Arrests reaffirms the 3 progned business necessity test set forth in their Policy Guidelines on Convictions.  The arrest guidelines go on to state that with respect to consideration of arrests, "a blanket exclusion of people with arrest records will almost never withstand scrutiny".

Practice Pointer.  In the event a company uses a CRA to conduct background investigations, that include criminal history, the company must ensure that all applicable rules and regulations are followed by the CRA, and any history of arrests or convictions be used in compliance with EEOC policies. 

Tags: , , , , ,

SUPREME COURT REFUSES TO ACCEPT CASE TO DETERMINE IF DRIVING UNDER THE ADA IS NOT A MAJOR LIFE ACTIVITY

Posted on May 28, 2009 by Daniel Burnick

The United States Supreme Court recently refused to hear the case of Kellogg v. Energy Safety Services, Inc. which dealt with the question of whether driving is a major life activity under the ADA.  Kellogg worked as a safety technician for Energy Safety Services, and was required to drive a company vehicle to numerous work sites.  Kellogg  was diagnosed with epilepsy, and although she was cleared to continue working, her doctor prohibited her from driving.  Her employer advised her in writing that she worked in a "safety-sensitive" position, and she could not return to work without a full release from her doctor.  Kellogg sued under the ADA, and the jury found in her favor, awarding nearly $150,000 in compensatory damages and back pay.  On appeal, the 10th Circuit reversed the trial court, finding that driving is not a major life activity under the ADA.  The Supreme Court denied certiorari on Energy Safety Services application.  The following circuits have held that driving is not a major life activity under the ADA:  2nd, 3rd, 4th, 7th, 10th and 11th.  The 11th Circuit covers Alabama. 

Practice Pointer.  Although all these cases were decided under the old ADA, it must be noted that driving was not listed as a major life activity in the EEOC regulations under the old ADA, and it is not listed in the revised list of major activities under the ADA Amendments Act of 2008.  I anticipate as new cases wind their way through the courts under the ADA Amendments Act of 2008, this issue will continue to be addressed. 

Tags: , , ,

US SUPREME COURT ADRESSES PREGNANCY DISCRIMINATION ACT RETIREMENT BENEFIT CALCULATIONS

Posted on May 18, 2009 by Daniel Burnick

On Monday, May 18, the US Supreme Court issued another employment related opinion, this time dealing with the calculation of retirement benefits based on pre-Pregnancy Discrimination Act policies.  In AT&T Corp. v. Hulteen (US Supreme Court 5/18/09) Justice Souter, in a 7-2 vote, delivered the opinion finding that AT&T's pension benefits, which were calculated in part under an accrual rule that was applied only pre-PDA, and gave less retirement credit for pregnancy than for medical leave generally did not necessarily violate the PDA.  When the PDA became effective in 1978, AT&T changed it's policy to allow the same service credit for pregnancy as for other medical leaves of absence, but did not make the change retroactive, resulting in four employees suing AT&T because their pregnancy leaves resulted in smaller pensions.  The Court found that since Congress did not apply the PDA retroactively, AT&T did not have to make it retroactive either.  If the plaintiff's position had beeen upheld by the Court, it would have created a tremendous burden on companies to re-calculate pensions for women leaving the workforce now and in the near future, who were subject to pension rules similar to AT&T. 

Practice Pointer.  From time to time, courts need to address changes in the law that took place decades ago.  It is important that companies review and revise their record keeping policies and procedures to comply with all applicable state and federal laws.  Even when in compliance, records may be inadvertently destroyed that are needed later on.

Tags:

HYUNDAI MOTORS HIT WITH $5.79 MILLION SEXUAL HARASSMENT VERDICT

Posted on May 4, 2009 by Daniel Burnick

Tammy Edwards was awarded 5.79 million dollars by a jury in Federal Court in Montgomery for sexual harrassment, negligent supervision, and retaliation.  The Birmingham News reported late Friday, the jury  awarded $795,000 in compensatory damages, $5 million in punitive damages against Hyundai, and $10,000 against a supervisor, Mike Swindle, who was sued in his individual capacity.   The facts of the case involve Swindle propositioning Edwards for oral sex, sex, and threatened to blow her husband's head off.  Swindle also blocked her was in the hall, bumped against her with his hands behind his back, hugged her and pulled her hair by grabbing her pony tail.  Edwards complained to one supervisor, who took no action although he admitted he knew that Swindle's behavior was often objectionable.  She also complained to another supervisor, who laughed it off and said that Swindle will tell you "stuff you don't want to hear".  For a more detailed explanation of the causes of action and the facts of the case, you can read Judge Thompson's order denying Hyundai's Motion For Summary Judgment dated March 27, 2009. 

This is a textbook case on what can and often does go wrong in the work place.  Edwards missed her sexual harassment training because she was out sick  There was no signed receipt showing that Edward's received the 47 page, single spaced policy manual.  Swindle was transferred to another position, but his physical location was actually closer to Edwards then before he was transferred.  Swindle continues to work at Hyundai.

Practice Pointer.  It is essential that all complaints of harassing behavior be treated seriously, a proper investigation take place, and the appropriate remedial measures be implemented.  For an interesting perspective on how the general public views these type of cases, I would highly recommned that you read the Birmingham News article and the comments from the readers. 

Tags: , , ,

SOCIAL NETWORKING IN THE WORKPLACE

Posted on May 1, 2009 by Daniel Burnick

Several weeks ago, I gave a presentation on behalf of Sterling Educational Services to a number of attorneys and HR professionals entitled "Employee Privacy In The Workplace".  I addressed a number of areas, including employee privacy, evaluating performance and employee off-duty misconduct.  During the presentation, the majority of the questions dealt with social networking and privacy issues involving the internet and other electronic devices.  Several recent artilces that appeared in the Birmingham News demonstrate how the internet and other electronic advancements continue to outpace the corporate world.  On April 15, an article by Mary Orndorff dealt with several Alabama Congressmen who use Facebook, Twitter, Myspace and Youtube.  On the same day, an article appeared concerning police and fire agences using Twitter to communicate that was published by Carrie Antlfinger with the AP.  Today, an article by Ian Rapoport appeared in the sports section about the University of Alabama football coaches using Twitter for recruiting purposes.  Another articlesappeared this week dealing with the use of GPS devices in divorce cases.

With technology continuing to advance at a rapid pace, it is advisable for employers to have the appropriate policies and procedures to deal with the use of Twitter, Facebook, Linkedin, Myspace, Youtube and GPS devices both on company time and off of company time.  Many disgruntled employees post their views in the public domain, which may have an adverse impact on their company.  Others post positive views, which would be beneficial to the company.  Some policies are a single paragraph, while others are multiple pages long. What it comes down to is be respectful, and if you can't say it to your mother, don't say it on the internet!!

Practice Pointer.  It is advisable for employers to have a policy tailored to their needs concerning social networking.  The policy needs to be reviewed and updated on a regular basis, as technology continues to advance.

Tags: , , , , , ,

RICCI V. DESTEFANO SUPREME COURT ORAL ARGUMENT CONERNING TITLE VII

Posted on April 22, 2009 by Daniel Burnick

On February 3, in The Perfect Storm, Part 2, I posted the following:

I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress.  The Supreme Court, which has already decided two employment related cases so far this year, has agreed to hear oral argument in the case of Ricci v. DeStefano, which deals with a reverse discrimination claim and whether a municipality can decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants.  The white and Hispanic plaintiffs claim they would have been promoted if the city did not invalidate the test results because no black candidate scored high enough to be promoted.  The Supreme Court will decide the following question: 

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination

On April 22, the Supreme Court heard oral argument in this case.  Interestingly, at Law.com, Marica Coyle's article begins:  "The elements of a perfect storm for employers coalesce in the U.S. Supreme Court this week in a major job bias case asking what employers legally may do when a decison to avoid discrimination against one group of employees may mean discrimination against another group".  Cumberland School of Law Professor Marcia McCormick was quoted in the article as saying "I would feel very torn in advising an employer right now...As a practical matter, it seems employers can't win no matter what they do here".  Professor McCormick went on to say that Ricci's position Is "unworkable", and "If recognizing race at all is discrimination, there is nothing an employer can do because anything it does is discrimination.  Even surveying its own work force as to who is white, who is African-American, would become the roots of a discrimination claim."

This case has received widespread coverage in numerous publicaitons, including  the New York Times, the Washington Post, Law.com, and  the  Chicago Tribune.  It will be interesting to see how the Supreme Court resolves this issue: I anticipate that it will be a sharply divided court, with at least one dissenting opinion.

Practice Pointer.  As we continue to move through the coming months, keep an eye out for new court decisions, new laws, and new guidelines concerning various employment related laws. 

 

 

 

 

 

 

 

Tags: