Morris, Manning & Martin, LLP  2012 MSEC LEGAL UPDATE              Jason DCruz              Partner, Executive            ...
UNITED STATES SUPREME COURT     Employment Cases Decided by the United States Supreme CourtA.   States May Mandate Employe...
B.   Oral Complaints Are Sufficient Under the FLSA’s Anti-Retaliation     Provision.     Kasten v. Saint-Gobain performanc...
waivers. Prior to this decision, the enforceability of such waivers was often     challenged. The California Supreme Court...
One way in which plaintiffs may connect all of the decisions at issue is toprovide “significant proof that Wal-Mart operat...
NATIONAL LABOR RELATIONS BOARDA.   Mandatory Arbitration Clause Not Applicable To Class Actions.     In a decision issued ...
Following are some considerations for an employer’s covered employees:     •      As a precaution in the event of challeng...
department - should control absent overwhelming evidence that the requested     unit would constitute a “fractured” unit.D...
•   The EEOC received a record 99,947 charges of discrimination, the         highest number of charges in the agency’s 46-...
1.      Protected Employee Information.As a general rule, personally identifiable information (commonly referred toas “per...
genetic information; and (3) the Fair and Accurate Credit Transactions Act(“FACTA”), designed to protect consumer credit i...
•   Limit access to personal data to the extent practicable and provide         training to staff who handle personal data...
4.      A private employer may give preference in hiring to a veteran with a     disability over other applicants.     The...
2.     Ensure that the organization has current and adequate HR policies and     procedures.     3.     Train supervisory ...
that a right-to-sue letter is first received either by the claimant or by counsel,     whichever is earlier. Since the cou...
C.   Increased Work Scrutiny Is Not Enough To Support Retaliation Claim.     Tepperwien v. Entergy Nuclear Operations, No....
the facility in accordance with Catholic principles, it engaged in numerousreligious exercises and practices, such as cond...
B.   Plaintiff Need Not Identify Harassment As “Sexual” To Sustain A     Retaliation Claim.     Okoli v. City of Baltimore...
resigned, and filed a lawsuit claiming age discrimination and constructive     discharge.     The Court held, for the firs...
doctors indicating that the drugs would not impact their work performance.     Eventually, the employees were terminated w...
desk audit (and, plaintiff’s supervisors had requested desk audits for other     similarly situated, non-disabled co-worke...
the employee admitted that he had no information regarding the employee’s     work performance when he made the decision. ...
10TH CIRCUIT.A.   A Migraine Is Not Necessarily A “Disability” Under The ADA.     Allen v. Southcrest Hospital, No. 11-501...
plaintiff must first exhaust his or her administrative remedies before filing a     Title VII lawsuit.     In this case, p...
Taking the position that the firing constituted government action, Glenn suedunder the Equal Protection Clause of the Four...
B.   Private Employers May Deny Employment Applicant Because of a Prior     Bankruptcy.     Myers v. TooJay’s Mgmt. Corp.,...
rule uniformly may lead to pretext claims (e.g., an applicant may cite non-     uniform application in support of a claim ...
12 months. The plaintiff expected to give birth after the expiration of the     requisite 12-month period. Nevertheless, t...
conditions of employment and create a hostile work environment. “Certainly,     Leeth was annoyed by Bailey’s actions, but...
which prohibits individuals who have previously committed a separate     criminal offense from: (1) knowingly and intentio...
C.   Georgia Court of Appeals Rejects Application of Trade Secrets Act to     Investor Lists.     Sutter Capital Managemen...
States. The Act gives companies found to have committed a “good-faith”     violation of the E-Verify mandate 30 days to co...
2012 MSEC Legal Update
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2012 MSEC Legal Update
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2012 MSEC Legal Update

  1. 1. Morris, Manning & Martin, LLP 2012 MSEC LEGAL UPDATE Jason DCruz Partner, Executive Compensation and Employment Morris, Manning & Martin, LLP 404.504.7601 rjd@mmmlaw.com
  2. 2. UNITED STATES SUPREME COURT Employment Cases Decided by the United States Supreme CourtA. States May Mandate Employer Participation in E-Verify. Chamber v. Whiting, 131 S. Ct. 1968 (2011). On May 26, 2011, the Supreme Court upheld an Arizona law that mandates employer participation in E-Verify and provides for the suspension or revocation of business licenses of employers who knowingly or intentionally employ unauthorized workers. In a 5-3 opinion, the Court held that federal immigration laws do not preempt the Arizona law and upheld the statute as constitutional. E-Verify is a computerized employment eligibility verification system that the federal government implemented in 1996. The federal Illegal Immigration Reform and Immigrant Responsibility Act grants employers who use E-Verify to confirm a worker’s eligibility a rebuttable presumption that the employer did not hire undocumented workers in violation of federal law. The employer can raise this rebuttable presumption in court as a defense to charges that the employer violated federal law prohibiting the hiring of unauthorized workers. In 2007, Arizona enacted the Legal Arizona Workers Act (LAWA) which prohibits employers from knowingly or intentionally hiring undocumented workers to perform services in Arizona. Employers who violate the law may have their business license suspended for the first offense, and face the mandatory revocation of their license for the second offense. LAWA also makes the use of E-Verify mandatory for employers doing business in Arizona. An employer who does not use E-Verify forgoes the rebuttable presumption that it did not knowingly or intentionally hire an unauthorized worker. Several other state legislatures, including Georgia, have also implemented their own laws imposing sanctions for employing unauthorized workers and mandating the use of E-Verify by employers. The Court’s decision in Chamber gives all states the “go ahead” to enact separate legislation similar to LAWA, aimed at penalizing employers for employing undocumented workers. Whether Congress will attempt to unify states’ approach – possibly through a nationwide mandate on E-Verify – remains an open question. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  3. 3. B. Oral Complaints Are Sufficient Under the FLSA’s Anti-Retaliation Provision. Kasten v. Saint-Gobain performance Plastics Corp., 131 S. Ct. 1325 (2011). On March 22, 2011, the Court held that that anti-retaliation provision of the Fair Labor Standards Act (FLSA) included oral, as well as written, complaints. The FLSA provision at issue in Kasten prohibits an employer from discharging or in any other manner discriminating against an employee because he has “filed any complaint” or instituted any proceeding under or related to the FLSA. Prior to the Court’s decision, there was a split in the circuits concerning the following issues: (1) whether the term “filed any complaint” includes complaints to the government only or internal complaints to the employer as well, and (2) whether “filed any complaint” requires that the complaint be in writing. The plaintiff in Kasten worked at a manufacturing plant. He claimed that his employer issued him warnings and suspended him in retaliation for a complaint he had made, i.e., he told his supervisors and a human resources generalist that the location of the time clocks was illegal because it prevented employees from being paid for time spent donning and doffing their required protective gear. On review, the Court held that oral complaints are protected activity under the FLSA’s anti-retaliation provision. Still, the Court found, the term “filed any complaint” contemplates “some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.” Thus, the Court held that a complaint is “filed” when “a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act.” The Court stated that it expressed no view as to whether the FLSA’s anti- retaliation provision protected only complaints filed with the government or also encompassed internal complaints made to the employer. The Kasten decision likely will result in increased retaliation claims under the FLSA. Because the Court did not decide whether internal complaints are covered by the anti-retaliation provision, the most conservative approach is to assume that internal complaints concerning potential FLSA violations are protected and to update policies and complaint procedures accordingly.C. California Class Action Arbitration Waiver Enforceable. AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). In a 5-4 decision, the Court upheld the enforceability of class action arbitration Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  4. 4. waivers. Prior to this decision, the enforceability of such waivers was often challenged. The California Supreme Court previously held that a consumer arbitration agreement prohibiting class arbitrations was unconscionable. In Concepcion, the Court found it improper for a court to impose class arbitration where an agreement expressly prohibited it. State law rules such as these, the Court concluded, ran counter to the FAA’s objectives of enforcing arbitration agreements in accordance with their written terms. Further, the Court noted, class arbitration is inconsistent with the main goal of arbitration, i.e., to “facilitate streamlined proceedings.” Another key feature of arbitration, the Court recognized, is “that parties may agree to limit the issues subject to arbitration … and to limit with whom a party will arbitrate its disputes.” The “informality of arbitral proceedings is itself desirable, reducing the cost and increasing the speed of dispute resolution.” Imposing class arbitration upon unwilling parties interfered with that goal.D. Plaintiffs Will Find It More Difficult to Certify Employment Class Actions. Wal-Mart, Inc. v. Dukes, 131 S. Ct. 2541 (2011). A nationwide class of approximately 1.5 million female employees of Wal-Mart brought a Title VII action against the company alleging sex discrimination and seeking injunctive and declaratory relief, back pay, and punitive damages. The employees claimed that local managers exercised discretion over pay and promotions disproportionately in favor of men which had an unlawful disparate impact on female employees, and that Wal-Mart’s refusal to control its managers’ authority constituted disparate treatment. At issue in the case was whether the lower courts properly granted the plaintiffs’ class certification. Rule 23(a)(2) of the Federal Rules of Civil Procedure provides the requirements that plaintiffs must meet to obtain class certification. One requirement is that plaintiffs show that the class has common “questions of law or fact.” As the Court recognized, this requirement is “easy to misread, since ‘[a]ny competently crafted class complaint literally raises common ‘questions.’” Rather, the Court ruled, “claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” In the Dukes case, the Court observed, the plaintiffs sued Wal-Mart based on millions of employment decisions at once. “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why I was disfavored.” Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  5. 5. One way in which plaintiffs may connect all of the decisions at issue is toprovide “significant proof that Wal-Mart operated under a general policy ofdiscrimination.” However, the Court found, such proof was entirely absent.Wal-Mart’s policy forbids sex discrimination, and the company imposespenalties for denying equal employment opportunities. The only corporatepolicy that the plaintiffs established is Wal-Mart’s “policy” of giving localsupervisors discretion over employment matters. This, the Court reasoned,“is just the opposite of a uniform employment practice that would provide thecommonality needed for a class action; it is a policy against having uniformemployment practices. The Court also recognized that delegating decision-making authority is a “very common and presumptively reasonable way ofdoing business.”The Court found that the plaintiffs failed to identify “a common mode ofexercising discretion that pervades the entire company,” and concluded that“it is quite unbelievable that all managers would exercise their discretion in acommon way without some common direction.” In an attempt to make sucha showing, the plaintiffs relied on evidence of statistical disparities betweenpay and promotion rates for men and women across multiple job groups andlocations. On the other hand, Wal-Mart highlighted the absence of anydisparity at most individual locations. The Court rejected the plaintiffs’statistical evidence, concluding that disparities at the regional and nationallevel did not establish disparities at individual locations. Further, even if theplaintiffs established pay or promotion disparities at all of Wal-Mart’s 3,400stores, they still could not identify a “specific employment practice” thatcaused the disparities. The Court also rejected the plaintiffs’ reliance onanecdotal evidence to establish commonality because they had only providedstatements from about one in every 12,500 class members relating to 235 outof Wal-Mart’s 3,400 stores.In addition to meeting the requirements of Rule 23(a), the class must also becertified under one of the categories set forth in Rule 23(b). The Courtconcluded that the plaintiffs’ individualized claims for backpay wereimproperly certified under Rule 23(b)(2). According to the Court, Rule23(b)(2) applies “only when a single injunction or declaratory judgmentwould provide relief to each member of the class.” It does not apply wheneach individual class member would be entitled to a different injunction ordeclaratory judgment against the defendant, or to an individualized award ofmonetary damages. Rather, plaintiffs’ individualized monetary claimsbelonged in Rule 23(b)(3) which contains additional procedural safeguardsthat plaintiffs could not meet.Thus, the Court’s ruling in Dukes will make it more difficult for plaintiffs tocertify employment class actions where the decisions of multiple supervisorsand managers are at issue. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  6. 6. NATIONAL LABOR RELATIONS BOARDA. Mandatory Arbitration Clause Not Applicable To Class Actions. In a decision issued on January 3, 2012, in D.R. Horton & Michael Cuda, Case 12-CA-25764 (dated Jan. 3, 2012), a two-member panel of the NLRB held that an employer violates the National Labor Relations Act (“NLRA”) when it requires employees covered by the NLRA (i.e., most non-supervisory and non-managerial employees of most private sector employers, whether unionized or not) to agree, as a condition of employment, to binding arbitration of any disputes or claims arising out of their employment if the arbitrator is restricted to hearing only an individual claim, not a class or collective action. The Board found that a compulsory waiver of a class or collective action unlawfully restricts the rights of employees to engage in concerted activity for their mutual aid and protection, notwithstanding the provisions of the Federal Arbitration Act. D.R. Horton appears to conflict with Supreme Court and federal case law precedent on the matter. However, if upheld, it may affect employers that have not considered themselves vulnerable to the NLRB’s reach in at least three significant respects: First, the decision is not restricted to assessing “protected concerted activity” in terms purely within the NLRA. Rather, it transcends the NLRA to examine whether there has been interference with the exercise of employee rights under the Fair Labor Standards Act, a statute interpreted and vigorously enforced by the Department of Labor but not the NLRB. Second, it may presage even greater interest by the NLRB in matters that have been regarded as the exclusive province of other administrative agencies charged by Congress to interpret and/or enforce legislation, including the assertion of substantive rights and protections against retaliation. Third, D.R. Horton stands to affect all employers covered by the NLRA – even if none of the employer’s employees are represented by a union. What Employers Should Consider Now Employers should note that the NLRB decision only affects employees covered by the NLRA (whether they are union-represented or not). While “covered employees” can include individuals in addition to members of a collective bargaining unit, the term does not cover supervisors or certain other employees in an organization. Thus, even if the D.R. Horton panel decision stands, employees who are who are not covered by the NLRA could still be required as a condition of employment to agree, in writing, to use only individual arbitration proceedings to pursue employment claims. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  7. 7. Following are some considerations for an employer’s covered employees: • As a precaution in the event of challenge to a mandatory individual arbitration policy, some employers may decide to include specific language in their arbitration agreements to allow individual binding arbitration to go forward under the terms of the agreements should a ban on class and collective arbitration be found unenforceable. Nevertheless, this position could be rejected by the NLRB unless there is a shift in its prevailing view. • Employers may wish to act in consonance with D.R. Horton but attempt to rewrite their arbitration agreements for covered employees to be as procedurally restrictive as possible, such as in defining the standards for a class. However, great caution would be required, as such measures as shifting expenses for class and collective actions to the parties seeking class status, or adding damage restrictions that could minimize exposure to large awards, might contravene the procedural safeguards required by courts for enforcement of arbitration clauses covering statutory employment rights and remedies. Employers may wish to bide their time, hoping for a reversal of D.R. Horton by a federal appellate court.B. Employers Required To Post A New Notice For Employees. A new rule issued by the NLRB requires that all employers subject to NLRB jurisdiction post a notice, both physically and possibly electronically, advising employees of their rights under the NLRA. The content of the Notice can be found at https://www.nlrb.gov/poster. The date when the Notice was required to be posted was November 14, 2011; following legal challenges it has been postponed to April 30, 2012.C. Easier For Unions To Organize Small Groups Of Employees. In a decision released on August 30, 2011, the NLRB signed off on a decision making it easier for unions to organize small groups of employees. Specialty Healthcare & Rehab. Ctr., 357 NLRB No. 83. The Board’s decision states that when a group of employees or union petitions for an “identifiable” group of employees, that unit should be an appropriate unit unless the employer (or another interested party like another union) demonstrates that excluded employees in a larger unit share “an overwhelming community of interest with those in a petitioned for unit”. The NLRB is signaling that a union’s expressed desire to represent some subset of the employee population - such as one job classification, or one Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  8. 8. department - should control absent overwhelming evidence that the requested unit would constitute a “fractured” unit.D. Second Social Media Report Issued By General Counsel’s Office. Cases related to social media continue to confront the NLRB. On January 24, 2012, the acting General Counsel of the NLRB issued a second social media report to help provide further guidance to practitioners and human resource professionals. The report is important because, ultimately, it is the NLRB General Counsel who decides which employee charges of unfair labor practices to prosecute. The report reiterated two main principles set forth in an earlier report issued by the General Counsel’s office: 1. Employer policies should not be so broad such that they prohibit, discourage or chill activity that is protected by Section 7 of the National Labor Relations Act (“NLRA”) (e.g., discussion of wages or working conditions). Specifically, the report made clear that: • Specific examples of the type of conduct prohibited should be included in any social media policy (i.e., do not disclose “trade secrets”, as opposed to do not post “sensitive information” about the company). • The policy should carefully carve out and protect employee’s specific rights under NLRA; a general saving clause is insufficient. • The policy should not use vague terms like “appropriate” or “professional” without providing clear definitions for those terms. 2. Employee comments on social media networks generally are not protected if those comments are mere complaints about or general dissatisfaction with the job (e.g., “I hate my job!” or “My boss is mean!”). According to the report, the comments will be protected if they are associated with an expression of shared concern, such as a dialogue about how bad the work environment is and what employees can do to fix it in response to a single employee’s wall post about the job. FEDERAL LAW DEVELOPMENTA. Record Number of EEOC Charges Filed In 2011. For the fiscal year ending on September 30, 2011, the EEOC reported a record number of charges filed with the Commission. Following is a summary of the statistics reported by the EEOC for 2011: Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  9. 9. • The EEOC received a record 99,947 charges of discrimination, the highest number of charges in the agency’s 46-year history. • EEOC staff also delivered historic relief through administrative enforcement, totaling more than $364.6 million in monetary benefits for alleged victims of workplace discrimination. This is also the highest level obtained in the Commission’s history. • 5.4 million individuals in both the private and federal sectors benefitted from changes in employment policies or practices in their workplace during the past fiscal year because of the EEOC’s enforcement programs. • Public outreach and education programs reached approximately 540,000 persons directly. • EEOC field legal units filed 261 lawsuits: 23 of which involved allegations affecting large numbers of people; 61 had multiple victims (less than 20); and 177 were individual lawsuits. • The EEOC’s private sector national mediation program obtained more than $170 million in monetary benefits for complainants, and secured the highest number of resolutions in the history of the program - 9,831. This is five percent more than the number of resolutions reported in fiscal year 2010. • In the federal sector, the EEOC resolved a total of 7,672 requests for hearings, securing more than $58 million in relief for parties who requested hearings. It also resolved 4,510 appeals from final agency determinations. The statistics are a stark reminder that a poor economy may contribute to an increase in discrimination-based lawsuits. Employers should protect themselves by implementing policies and procedures that are compliant with federal, state, and local law, and providing discrimination training for managers, supervisors, and other relevant personnel.B. Maintaining Employee Privacy for Multi-State Employers. Employers should be aware of their obligations and restrictions regarding the collection, storage, use, and transfer of an employee’s personal information. However, for multi-state employers, the laws, rules, and regulations can be difficult to navigate because requirements may vary from state-to-state. Following is a summary of some of the basic rules that all multi-state employers should follow: Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  10. 10. 1. Protected Employee Information.As a general rule, personally identifiable information (commonly referred toas “personal data” or “personal information”) is given special status andprotection by privacy laws. This type of information typically includes datathat identifies or is linked to an identifiable living individual, such as a nameor Social Security number, or that, when combined together, couldreasonably identify an otherwise unknown individual, such as a birth date,gender, and postal code taken together.Most privacy laws exempt personal data that has been encrypted. However,certain types of “sensitive data” may be given enhanced protection,including, but not limited to, race, ethnicity or national origin, politicalopinions or associations, union membership, sexual orientation, maritalstatus, health-related information, and criminal history.Note: Generally, privacy laws are not restricted to protecting active employeeinformation, but may require the employer to protect such information for astated period of time (e.g., 1 year, 3 years) after the employee’s employmenthas terminated. In addition, the privacy laws may protect not just employees,but applicants (regardless whether the applicant is hired or retained),consultants, and independent contractors.2. Applicable Law.Most U.S. states and territories have enacted data breach notification laws insome form. Many of these laws are identity-theft protection measures thatgenerally impose an obligation to protect Social Security numbers and similarpersonal data against unauthorized use or disclosure and require securedestruction of such data.The laws of each state may vary, sometimes significantly. For example,since March 1, 2010, Massachusetts requires most companies to adopt awritten security policy that meets certain standards to protect a broad range ofpersonal data collected from customers and employees who reside in thestate. A compliant plan requires not only security measures, such asencryption of personal data stored on portable devices, but also training andoversight of vendors who have access to the data.In addition, a few U.S. federal statutes protect specific types of personalinformation. The most important of these for employers are the (1) HealthInsurance Portability and Accountability Act, covering certain health-relatedinformation (although employers that do not provide health services are notgenerally covered by the HIPAA rules, they may nevertheless be subject tothe act’s restrictions in their capacity as administrators of a health plan); (2)the Genetic Information Nondiscrimination Act, which applies specifically to Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  11. 11. genetic information; and (3) the Fair and Accurate Credit Transactions Act(“FACTA”), designed to protect consumer credit information.Note: FACTA is an amendment to the Fair Credit Reporting Act that allowsconsumers to request and obtain a free credit report once every twelvemonths from each of the three nationwide consumer credit reportingcompanies (Equifax, Experian and TransUnion).3. Other Considerations.Employers should consider all legal requirements, whether local, state, orfederal, that may impact their data privacy policies and procedures. Forexample, employee record-retention rules, “whistleblower” statutes, andrestrictions on monitoring or surveillance of employee activities andcommunications.In addition, certain processing or handling of personal data, and changes to acompany’s privacy policies, may require disclosure to and/or consultationwith unions representing affected employees.4. Penalties And Compliance.Many data privacy laws explicitly provide affected parties with personalrights of action for statutory violations. Civil fines are also common, andsome laws permit criminal prosecution for egregious cases.For example, fines for a HIPAA privacy violation range from $100 to over$50,000 per violation, up to an annual cap as high as $1.5 million, dependingon the level of culpability, but offenses committed knowingly can result incriminal prosecution.Further, employers whose employees’ identities are stolen due to knowingviolations of FACTA may be held responsible for minimum statutorydamages of up to $1,000 per employee, plus punitive damages and attorney’sfees, and can be subject to civil fines of up to $2,500 per employee inenforcement actions brought by the Federal Trade Commission andadditional amounts from state authorities.5. Minimizing The Risk.Companies seeking to minimize their exposure from legal violations andsecurity breaches involving employee personal data should:• Consider adopting data privacy and protection best practices that aim to limit the amount of personal data they collect, process, transfer and store;• Secure personal data collected, in all formats in which it is kept; Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  12. 12. • Limit access to personal data to the extent practicable and provide training to staff who handle personal data; • Ensure third parties receiving personal data are subject to and apply appropriate security measures; • Prepare for security breaches involving personal data; • Maintain accuracy of the personal data collected and processed; and • Monitor compliance with all applicable data protection laws and regulations, as well as any safe harbor and contractual requirements adopted by the company.C. EEOC Issues New Guidance On The Application Of The ADAAA To Veteran’s Employment. On February 28, 2012, the EEOC issued new guidance respecting disabled veteran’s employment rights which incorporates the changes made by the Americans with Disabilities Act Amendment Act (“ADAAA”). According to the guidance, “as a result of changes to the ADA made by the [ADAAA], it is now much easier for individuals with a wide range of impairments to establish that they are individuals with disabilities and entitled to the ADA’s protections. For example, the term “major life activities” includes not only activities such as walking, seeing, hearing, and concentrating, but also the operation of major bodily functions, such as functions of the brain and the neurological system. Additionally, an impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered substantially limiting; the determination of whether an impairment substantially limits a major life activity must be made without regard to any mitigating measures (e.g., medications or assistive devices, such as prosthetic limbs) that an individual uses to lessen an impairment’s effects; and impairments that are episodic or in remission (e.g., epilepsy or PTSD) are considered disabilities if they would be substantially limiting when active.” In addition, the EEOC issued the following specific guidance: 1. It is illegal for an employer to refuse to hire a veteran because he has post-traumatic stress disorder (“PTSD”), because he was previously diagnosed with PTSD, or because the employer assumes he has PTSD. 2. An employer may not refuse to hire a veteran based on assumptions about a veteran’s ability to do a job in light of the fact that the veteran has a disability rating from the U.S. Department of Veterans Affairs (VA). 3. Some service-connected disabilities, such as deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, major depressive disorder, and PTSD, will easily be concluded to be disabilities under the ADA. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  13. 13. 4. A private employer may give preference in hiring to a veteran with a disability over other applicants. The EEOC’s guidance underscores the expansive effect of the ADAAA and the increased administrative impact it will have on employers.D. Personal Liability For Employment Decisions Under the FLSA and FMLA. Many officers, managers, and supervisors believe that they cannot be held personally liable for employment related claims brought by employees or former employees. However, individuals can be sued along with the employer for money damages. The Federal Fair Labor Standards Act (“FLSA”) and Federal Family Medical Leave Act (“FMLA”) both provide that individuals may be held liable for certain employment related decisions. And, the FLSA and FMLA are strict liability statutes. Thus, no wrongful intent is required and individuals can be liable for honest mistakes made under these laws. Under the FLSA and FMLA an “employer” includes an individual executive, officer, Manager, and supervisor and other individuals who act directly or indirectly in the interest of an employer and therefore may be held liable for their acts. What does this really mean? An individual who, for example, makes a determination under the FLSA that a particular employee is exempt from the overtime provisions of that law can be held personally liable to that employee if it is later determined that the individual is not exempt and must be paid 1.5 times their regular rate of pay for all hours worked in excess of forty (40) hours in any workweek. Similarly, an individual who denies a request for FMLA leave based upon an innocent belief that an employee does not have a serious health condition may also find himself or herself on the wrong end of an FMLA claim. These situations provide only examples of what can go wrong when FLSA and FMLA decisions are made. These statutes are among the most complex and difficult to administer. Thus, those individuals who have authority to make personnel decisions must ensure compliance with these laws. Although individuals can be held liable for many employment decisions, steps can be to avoid such liability: 1. Know the law. HR personnel should be well versed in labor and employment law and be a resource to line management. If you are unfamiliar with the law or the matter may lead to litigation, consult outside counsel who specializes in labor and employment law for employers. Remember that ignorance of the law is not a defense. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  14. 14. 2. Ensure that the organization has current and adequate HR policies and procedures. 3. Train supervisory personnel in EEO compliance and harassment in the workplace. 4. Organizations should have well publicized complaint and grievance procedures. 5. Thoroughly document all employment decisions. 6. Enforce HR policies on a uniform and consistent basis. Note: other employment laws provide for personal liability, but are not covered herein. FEDERAL CASE LAW2ND CIRCUIT.A. Second Circuit Clarifies 90-Day Limitation On EEOC Claims. A claimant has 90 days from receipt of a right-to-sue letter to file an EEOC claim. There is a presumption that a mailed document is received three days after its mailing, absent sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail. In Tiberio v. Allergy Asthma Immunology of Rochester, the claimant, Tiberio, filed a disability discrimination claim in the district court on February 28, 2011, 96 days after the right-to-sue letter was issued. Three months later, the district court dismissed Tiberio’s claim as untimely, and declined to exercise supplemental jurisdiction over her remaining state law claim. On appeal, the Court rejected Tiberio’s argument that the date her attorney received the right-to-sue letter should control the limitations decision. The Court found that Tiberio’s interpretation of the 90-day limitation would afford a claimant represented by counsel an unfair extension of time beyond her own receipt of an EEOC notice, simply by delaying delivery to her attorney. To avoid future confusion regarding the issue, the Court explicitly stated that the 90-day period to file equal employment claims begins to run on the date Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  15. 15. that a right-to-sue letter is first received either by the claimant or by counsel, whichever is earlier. Since the court presumed Tiberio received the right-to- sue letter 93 days before she filed her disability discrimination claim, her claim was time-barred.B. 2nd Circuit Disagrees with 9th Circuit: Pharmaceutical Reps Do Not Fall Under The Outside Sales Exemption. On Wednesday, January 25, 2012, Novartis, the second largest pharmaceutical sales company in the world, agreed to pay $99 million to settle the claims of a class of its pharmaceutical sales representatives (“pharma reps”) who alleged that they were denied overtime pay. The Novartis case is one in a series of cases brought by pharma reps around the country. Pharma reps are employees tasked with visiting doctors and providing information about their company’s drugs in order to convince the doctors to prescribe the drugs to their patients. They may hand out information about clinical studies, answer questions about insurance coverage, and/or leave samples. However, pharma reps do not actually sell pharmaceutical products to the doctors because such sale of drugs is against the law. Pharma reps’ days can be long, consisting, for example, of nine hour days out in the field and occasional evening work. The pharmaceutical industry has until now generally taken the position that it need not pay its pharma reps overtime pay under the Fair Labor Standards Act (“FLSA”) or the state-law counterparts because they are “outside sales” people and/or “administrative” employees who are exempt from the requirements of those laws. The Second Circuit rejected this position in Novartis. See In re Novartis Wage & Hour Litig., 611 F.3d 141 (2d Cir. 2010). The Court held that pharma reps do not fall under the outside sales exemption because they do not actually make sales. In addition, the Court also held that the administrative exemption did not apply to the Novartis pharma reps because they were not allowed to exercise either discretion or independent judgment in the performance of their duties. In a similar case against GlaxoSmithKline last year, however, the Ninth Circuit held that pharma reps do fall under the outside sales exemption despite not making any actual sales. See Christopher v. SmithKline Beecham Corp., 635 F.3d 383 (9th Cir. 2011). The Supreme Court has granted certiorari and agreed to review the split between the Second and Ninth Circuit decisions. The issue is currently being briefed in the Supreme Court and will be heard this Term. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  16. 16. C. Increased Work Scrutiny Is Not Enough To Support Retaliation Claim. Tepperwien v. Entergy Nuclear Operations, No. 10-1425 (2nd Cir. Oct. 31, 2011). In this case, at the district court level, the jury had before it two claims: male-on-male sex harassment by a supervisor, and retaliation for complaining about the harassment. The jury found in favor of the employer on the first claim. However, the jury found in favor of the employee on the second claim because, in their view, increased scrutiny at work, including a disciplinary letter that was later withdrawn, constitutes a “materially adverse action” for a claim under Title VII’s anti-retaliation provision. The jury awarded $500,000 in punitive damages, but zero in compensatory damages. On post-trial motions and despite the jury verdict, the district court directed entry of a verdict for the employer on retaliation, holding that all of the employer’s behavior added together was not great enough to deter a reasonable employee from complaining about harassment. In particular, the employer opened fact-finding investigations following several of plaintiff’s complaints. In addition, in the midst of plaintiff’s complaints about the alleged harasser, plaintiff was issued a counseling letter for failing to account for a piece of equipment that went missing which was subsequently rescinded after another employee admitted to liability, and plaintiff was investigated for his use of sick time, both of which plaintiff complained were retaliatory actions. Notwithstanding, the Second Circuit affirmed the directed verdict as a matter of law, holding that the employer did not recklessly disregard the employee’s Title VII rights and took affirmative steps to correct incidents that he complained about during the year before his resignation. In addition, the Court held that an employer opening up an investigation, one that does not cause the employee any expense or harm to his employment status, does not subject itself to retaliation liability. It cites in particular the circumstances of this case, that (1) fact-finding investigations “were not disciplinary in nature,” (2) there was good reason for the company to initiate the fact-finding investigations, and “thus no reasonable employee would have found them to be materially adverse or stigmatizing,” and (3) “while the fact-finding investigations certainly could lead to disciplinary action, they did not here.”4TH CIRCUIT.A. Title VII’s Religious Exemption Expanded. Kennedy v. St. Joseph’s Ministries, 2011 U.S. App. LEXIS 18936 (4th Cir. Sept. 14, 2011). In this case, St. Joseph’s Ministries, a tax-exempt organization operating under the principles and beliefs of the Roman Catholic Church, manages a nursing care facility. It employed the plaintiff as a geriatric nursing assistant from 1994 to 2007. Because St. Joseph’s operates Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  17. 17. the facility in accordance with Catholic principles, it engaged in numerousreligious exercises and practices, such as conducting daily facility-wideprayers and maintaining the employee handbook, which confirmed St.Joseph’s Catholic identity. However, the plaintiff was not Catholic, but amember of the Church of the Brethren.The Brethren practice at issue in Kennedy is the requirement for women towear modest, long dresses or skirts and to wear a prayer covering, such as aveil, over their hair. At some point during the plaintiff’s employment, theAssistant Director of Nursing Services allegedly told the plaintiff that herlong dresses, skirts, and head covering were inappropriate for a Catholicfacility and were making patients and their families uncomfortable. Theplaintiff also alleged that the Assistant Director continually told her sheneeded to adhere to a more traditional mode of dress. The plaintiff thencommunicated to the Assistant Director that her religious beliefs mandatedthat she continue wearing such attire. As a result, St. Joseph’s terminated theplaintiff’s employment on May 17, 2007, and the plaintiff then filed suitunder Title VII, alleging religious harassment, retaliatory discharge, anddiscriminatory discharge on the basis of her religion.Title VII contains an exemption for religious employers: “[Title VII] shallnot apply to . . . a religious corporation, association, educational institution,or society with respect to the employment of individuals of a particularreligion.” Courts have interpreted this language to only mean hiring andfiring decisions. However, according to the 4th Circuit, “employment” alsoincludes conduct occurring during the employment relationship. Thus, theCourt held that “employment” was synonymous not only with employmentdecisions like hiring and firing, but also must incorporate the entirerelationship between an employer and employee. On this basis, the courtdenied all of the plaintiff’s claims.The Fourth Circuit’s decision raises the possibility that other circuits willadopt this holding if they are faced with a similar issue. It is also possiblethat this case will discourage plaintiffs’ attorneys from bringing these typesof claims in other circuits because Kennedy is the first case of this kind and anotable flag for defense counsel to raise and wave on summary judgment.However, Kennedy is not a license for a religious employer to harass orretaliate on the basis of religion. Although the plaintiff in this case broughtonly Title VII claims, there are several tort claims (such as intentional ornegligent infliction of emotional distress) that could be part of a lawsuitbased on alleged harassment or retaliation. Therefore, it is still important tomaintain a policy and train your employees on anti- harassment and anti-retaliation issues, including religion-based harassment and retaliation. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  18. 18. B. Plaintiff Need Not Identify Harassment As “Sexual” To Sustain A Retaliation Claim. Okoli v. City of Baltimore, No. 08-2198 (4th Cir. Aug. 8, 2011). In this case, the plaintiff was an executive assistant to a department head named Stewart, the alleged harasser. Over the space of four months, “her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her.” Four months into the alleged harassment, the plaintiff made her first complaint to the city. Although the harassment ceased, the city took no apparent efforts to correct or discipline the harasser. The plaintiff then filed a complaint with the Mayor’s office. As soon as Stewart learned about the complaint, he fired her. The Court found that plaintiff had engaged in a protected activity when she complained of harassment, even though she did not expressly state “sexual harassment.” According to the Court, “it was enough for plaintiff to twice complain of “harassment,” even if it might have been more ideal for her to detail the sexual incidents she later relayed.” Relying on D.C. and 11th Circuit opinions, the court stated that employees need not use “magic words” to bring attention to concerns of sexual harassment, and that plaintiff’s repeated reference to “harassment” and “degrading” behavior should have been sufficient for the city to infer the seriousness of her complaint. Okoli is another reminder that employers need to be vigilant and thorough. If an employee complains about harassment, an employer should immediately look into the matter.5TH CIRCUIT.A. A Memorable Case: Hostile Work Environment Based on Age And Religion. Dediol v. Best Chevrolet Inc., No. 10-30767 (5th Cir. Sept. 12, 2011). In this case, Dediol, a Christian aged 65, alleged that a co-worker – a used car sales manager - routinely threatened and cursed at him in the workplace. For example, (1) the manager ripped off his shirt at work and told Dediol, “You don’t know who you are talking to. See these scars. I was shot and was in jail,” (2) when Dediol sought to take July 4 off to volunteer at a church- related event, Dediol alleges that the manager told him, “You old mother******, you are not going over there tomorrow” and “if you go over there, I’ll fire your f*****g ass,” and (3) when Dediol arrived at work early on July 4, Clay put his shoes on Dediol’s desk and stated: “Do you see these shoes? Your God did not buy me these shoes. I bought these shoes.” Dediol Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  19. 19. resigned, and filed a lawsuit claiming age discrimination and constructive discharge. The Court held, for the first time, that in the Fifth Circuit a plaintiff may bring a hostile-work-environment claim for age (under the ADEA), as well as religion (under Title VII). According to the Court, “a plaintiff advances such a claim by establishing that (1) he was over the age of 40; (2) the employee was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer.” The holding is significant because, in contrast to Title VII - which recognizes and compensates emotional distress as an element of damages - the federal ADEA has no provision for such relief, and thus an ADEA harassment claim without a constructive discharge claim (which can be compensated with back pay) would be practically valueless.6TH CIRCUIT.A. An Employee On Legal Prescription Medication May Be Fired For Safety Reasons As Long As The Employee Is Not “Disabled.” In a unanimous decision, the Sixth Circuit held that section 12112(b)(6) of the Americans with Disabilities Act (ADA), which prohibits employers’ use of tests that tend to screen out disabled individuals does not protect employees who are not disabled. In Bates v. Dura Automotive Systems, Inc., decided November 3, 2010, the Court held that, although non-disabled individuals may bring claims under some provisions of the Act, the plain text of subsection (b)(6) concerning “impermissible medical examinations” only covers individuals with disabilities. In this case, plaintiffs were seven former employees of a Tennessee company called Dura Automotive, which manufactures glass windows for motor vehicles. The employees performed a wide range of jobs at Dura: driving tow motors, assembling windows, painting primer on frames, and trimming and performing water testing. The company became concerned over what it viewed as a higher than normal rate of accidents, and banned the use of several legal drugs that it believed had a negative impact on safety, company property or job performance. Working with an independent lab, the company screened employees for twelve substances, including those found in many legal prescription drugs such as Xanax, Lotab, and Oxycodone. The plaintiffs all tested positive for these types of drugs but had legitimate prescriptions. The Company gave each employee the opportunity to transition to other drugs but refused to consider notes from the employees’ Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  20. 20. doctors indicating that the drugs would not impact their work performance. Eventually, the employees were terminated when they refused to stop taking the drugs they had been prescribed. The employees filed a lawsuit alleging that the company’s actions constituted an “impermissible medical examination” under the Americans with Disabilities Act (ADA). However, the Sixth Circuit held that Section 12112(b)(6) of the Americans with Disabilities Act (ADA), which prohibits employers’ use of tests that tend to screen out disabled individuals, does not protect employees who are not disabled. The decision in Bates is significant because attorneys for employees would now seem more likely to take the approach that the employee’s need for legal medications makes the employee “disabled.” It then becomes an issue of fact and the employer is free to present expert testimony at trial to show that the employee’s need for medication does not make him or her “disabled.” This is much less desirable, and more costly, for employers to litigate.8TH CIRCUIT.A. Employee Cannot Claim Discriminatory Failure To Promote Unless The Employee Applies For The Position. Culpepper v. Vilsack, No. 10-2627 (8th Cir. Dec. 28, 2011). In this case, plaintiff, who had a disability, claimed that the district court erred in denying her failure to promote claim. Plaintiff admitted that she did not formally apply for the job, but argued that this formal step ought to be excused under the doctrine of “futility,” given what the plaintiff claimed was a continuing pattern of discrimination - and because of the allegedly discriminatory inclusion of explanatory language in the job announcement referring to “successful activity/experience in listening.” Rather than take on the question of whether the job announcement suggested a discriminatory animus against plaintiff because of her hearing disability, the Court found that the employee more likely had a different reason for not applying for the promotion: “the district court found credible the testimony of plaintiff’s co-worker that plaintiff told her that she did not apply for the loan specialist position because of the recent death of her father. . . . We see no clear error in the district court’s finding of fact that the death of plaintiff’s father caused her failure to apply for the loan specialist position, and we affirm the district court’s determination that Culpepper’s failure to apply for the position was not excused for futility.” On a separate claim, the Court held that the employer’s failure to reclassify plaintiff at a higher pay grade was not discrimination, even the promotion process could be initiated by either an employee or a supervisor requesting a Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  21. 21. desk audit (and, plaintiff’s supervisors had requested desk audits for other similarly situated, non-disabled co-workers), because “an employee who does not formally apply must make every reasonable attempt to convey his or her interest in the job to the employer before he or she may prevail on a discrimination claim.” Plaintiff also admitted that, in addition to not requesting a desk audit herself, she did not ask her supervisors to request a desk audit on her behalf. She also admits that she never complained to the company that she was performing duties above her grade level and that she should be reclassified. This case is an important reminder for employees who believe they are not getting ahead in their jobs because of sex, race, disability, age or other factors: unless an employee actually applies for - or at the very least, expresses interest in - a promotion, the employee may not have a claim for discrimination. Such an application (or expression of interest) is an important step to preserving an employee’s rights, even if the employee thinks the outcome is preordainedB. Employer Must Have Evidence Of Poor Performance Before Employee Engages In Protected Conduct. Pye v. Nu Aire, Inc., No. 10-2243 (8th Cir. June 17, 2011). In this case, a newly-hired black employee filed a complaint claiming that he overheard the company’s payroll administrator mutter the words “n*****r goon” under her breath, in response to his request for help on a form. The complaint was investigated by the Director of Human Resources, but the employee reported that his interview with the Director was adversarial. For example, the employee claimed that the Director began by telling him that she did not believe his allegation that the payroll administrator had referred to him as a “n[******]r goon,” and stated that she had known the administrator for many years and that he was not a racist. In addition, the Director suggested that the employee’s claim was for money, a promotion, and a company-car, to which the employee responded that he “wanted the matter handled in the usual manner.” Following the meeting, the Director reported to a Vice President, who made the decision to terminate the employee. When the employee asked why he was terminated, the Director told him that “he was terminated for attempting to obtain a promotion and/or money and a company car through coercion or intimidation.” However, in the course of litigation, the employer insisted that the decision was based on poor performance. The Eighth Circuit held that there was no evidence that the company had any concerns regarding the employee’s performance before he engaged in protected conduct. The Vice President who made the decision to terminate Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  22. 22. the employee admitted that he had no information regarding the employee’s work performance when he made the decision. Further, viewed in the light most favorable to the employee, the evidence showed that his termination was a direct result of his complaint of discrimination and his suggestions of remedies, prompted by the Director’s leading questions. This case is a reminder that employees assigned to conduct an investigation must remain impartial, and not presume any facts.9TH CIRCUIT.A. Employers’ Remedies for Data Misappropriation Limited. U.S. v. Nosal, Case No. 10-10038, (9th Cir. April 10, 2012). The federal government prosecuted David Nosal for violations of the Computer Fraud and Abuse Act (CFAA), a federal statute that permits private parties to bring a civil cause of action for theft or misappropriation of electronic information and to recover compensatory damages and obtain injunctive or equitable relief. Specifically, the CFAA permits a private right of action against a person who accessed a protected computer “without authorization” or who “exceeds authorized access” to a computer knowingly and with the intent to defraud. The CFAA differs from trade secret misappropriation statutes in that employers do not need to prove that the stolen information is a “trade secret.” The District Court dismissed the CFAA charges against Nosal, holding that employees do not violate the CFAA unless they lack the authority to enter or use the portion of the computer network at issue. Here, Nosal left his employer and then encouraged his former coworkers to download source lists, names and contact information from his old work computer for the purpose of allowing Nosal to establish a competing business. The former coworkers were authorized to access the source lists on the database, though the employer had a policy preventing disclosure of confidential information to third parties. The Ninth Circuit agreed, determining that the statute should be read restrictively and that all ambiguities in the act should be resolved in Nosal’s favor. In particular, the Court concluded that without any allegations that Nosal’s co-conspirators lacked the employer’s authority to access the information on his employer’s computer, he could not be liable. The Court articulated that a broad reading of the CFAA would enable employers to make any access on a computer that is not specifically authorized and work related an actionable crime. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  23. 23. 10TH CIRCUIT.A. A Migraine Is Not Necessarily A “Disability” Under The ADA. Allen v. Southcrest Hospital, No. 11-5016 (10th Cir. Dec. 21, 2011). The Tenth Circuit indicated that courts do not regard the 2008 amendments to the Americans with Disabilities Act (“ADA”) as a basis to declare every ailment or condition to be a “disability” under federal law. In this case, the plaintiff, a medical worker in a private practice, claimed that on days when she suffered migraines - even if she went to work - she “crashed and burned” when she got home, taking medication and falling asleep almost immediately. The plaintiff relied on this “crash and burn” argument, claiming that her migraines limited her ability to care for herself in the evening, as she was “compelled” to go to sleep, due to her migraine medication. However, the Court did not accept the “crash and burn” argument, holding that an allegation of “sleep disturbance” was not sufficient, in and of itself, to prove a disability. In addition, the Court addressed whether the migraines had substantially limited the plaintiff’s ability to “work.” However, plaintiff’s admission that she only suffered from migraines when she was working for one particular doctor in the practice was fatal to her claim. The Court stated that to be disabled in the major life activity of “working,” “an employee must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes.” While this language was eliminated in the EEOC’s May 2011 regulations, there was no indication that the new regulations were to have retroactive effect, and, therefore, the Court applied the earlier version of the regulations. This decision is a reminder that there is no such thing as an “automatic disability,” and an employer should never assume that an employee who has an impairment that is listed as a potential “disability” in the 2008 amendments to the ADA is indeed “disabled” under the law. Even under the arguably looser definition of a disability created by the amendments, the question of whether someone is “disabled” is a fact-intensive inquiry, which depends on the effect the impairment has on the individual employee. In order to demand the protections of the ADA, the employee must prove that the impairment “substantially limits” them.B. Plaintiff First Must Exhaust Administrative Remedies To Pursue A Title VII Lawsuit. McDonald-Cuba v. Santa Fe Protective Services Inc., No. 10-2151 (10th Cir. May 09, 2011). The Tenth Circuit upheld the long standing rule that a Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  24. 24. plaintiff must first exhaust his or her administrative remedies before filing a Title VII lawsuit. In this case, plaintiff sued her employer until Title VII. The employer filed counterclaims against the plaintiff, which were later voluntarily dropped by the employer. Subsequently, the plaintiff amended her complaint alleging that the counterclaims were retaliatory, but failed to file a new or amended charge of discrimination with the EEOC prior to asserting the new claim. The 10th Circuit held that conduct occurring after an employee filed a Title VII complaint in federal court involving discrete retaliatory actions required the filing of a new EEOC charge. In addition, the Court determined that the fact that the retaliation plaintiff alleged was a part of the district court proceeding did not distinguish the case, so she must exhaust administrative remedies as to discrete acts of alleged retaliation that involve the filing of a counterclaim. This decision is reminder that courts will not make exceptions for plaintiffs that do not first exhaust their administrative remedies in connection with a Title VII claim. ELEVENTH CIRCUIT New Case LawA. Court Upholds Summary Judgment in Favor of Plaintiff On Transgender Plaintiff’s Sex Discrimination Claims. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). The Eleventh Circuit’s decision to affirm summary judgment on transgender plaintiff Elizabeth Vandiver’s sex discrimination claims under the Constitution’s Equal Protection Clause paves the way for potential sex discrimination claims against private employers under Title VII. At its core, the decision holds that discrimination on the basis of a person’s failure to conform to gender stereotypes is sex discrimination. In 2005, the Georgia General Assembly’s Office of Legislative Counsel hired Glenn, who at the time presented himself as a man named Glenn Morrison. Approximately a year later, Glenn told her supervisor that she was a transsexual, and showed up to an office Halloween party dressed as a woman. In 2007, Glenn announced to her employer that she would be transitioning from a male to a female, and would come to the office dressed as a woman from then on. Following that announcement, Sewell Brumby, the head of the Office of Legislative Counsel, terminated Glenn’s employment. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  25. 25. Taking the position that the firing constituted government action, Glenn suedunder the Equal Protection Clause of the Fourteenth Amendment, claimingthat Brumby discriminated against her on the basis of her sex, including bothher gender identity and her failure to conform to the male sex stereotype.After Glenn obtained summary judgment in the District Court for theNorthern District of Georgia, Brumby appealed to the Eleventh Circuit,which affirmed, holding that Brumby violated the prohibition of sex-baseddiscrimination in the Equal Protection Clause by terminating a transgenderemployee because of her gender nonconformity. Specifically, the Court held: A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender- appropriate appearance and behavior.” There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms. Accordingly, discrimination against a transgender individual because of her gender- nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.The Court found sufficient direct evidence of discrimination based onBrumby’s deposition testimony that he fired Glenn “because he considered it‘inappropriate’ for her to appear at work dressed as a woman and that hefound it ‘unsettling’ and ‘unnatural’ that Glenn would appear wearingwomen’s clothing.” Brumby further admitted that the “decision to fire Glennwas based on ‘the sheer fact of the transition.’” Significantly, the Court heldthat were this a Title VII case, the analysis would end there. However, underthe Equal Protection Clause, the Court was required to examine whetherBrumby could show an “exceedingly persuasive justification,” for thedecision. The Court held Brumby could not, rejecting Brumby’s purportedconcern, based purely on speculation, that women in the office might objectto Glenn’s use of the women’s restroom.Although the case was decided under the Equal Protection Clause, thereasoning of the Court’s decision, including its specific reference to the TitleVII analysis, lays the groundwork for similar claims against privateemployers under Title VII. As a result, employers should examine anti-discrimination policies and practices with a view that taking adverseemployment action against transgender workers raises the risk of liability forsex discrimination. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  26. 26. B. Private Employers May Deny Employment Applicant Because of a Prior Bankruptcy. Myers v. TooJay’s Mgmt. Corp., 640 F.3d 1278 (11th Cir. 2011). According to the Eleventh Circuit, the Bankruptcy Code does not make it unlawful for a private employer to deny employment to an individual on the grounds that the individual is or has been in bankruptcy. In this case, the employment applicant applied for a managerial position at a restaurant in Florida, and authorized a background check, including a review of his credit history. The applicant was not told that his employment was conditioned upon a clean credit history. Notwithstanding, the applicant successfully completed a 2-day, compensated on-the-job evaluation with the restaurant. Soon thereafter, he received a letter from the restaurant informing him he would not be hired because of “a financial matter.” The applicant contacted the HR department at the restaurant and was told that his bankruptcy filing was the only reason he was not hired, and that it was company policy not to hire people who had filed for bankruptcy. The applicant filed a lawsuit, claiming that the restaurant had discriminated against him in violation of 11 U.S.C. §525(b) of the Bankruptcy Code by refusing to hire him because of his bankruptcy filing. The district court granted summary judgment to the restaurant on the grounds that Section 525(b) does not prohibit a private employer from refusing to hire someone because of a bankruptcy filing. The 11th Circuit affirmed, holding that discrimination protection under 11 U.S.C. §525 depends on whether the employer is a “governmental unit” (subject to Section 525(a)) or a “private employer” (subject to Section 525(b)). The earlier-enacted Section 525(a) provides that a governmental unit “may not … deny employment to, terminate the employment of, or discriminate” against a person based on that person’s bankruptcy filings. In contrast, the later-enacted Section 525(b) provides that a private employer may not “terminate the employment of, or discriminate” against a person based on that person’s bankruptcy filings; this section says nothing about denying employment because of bankruptcy. Accordingly, the Eleventh Circuit found that the applicant had no claim because the restaurant was a private employer. The Eleventh Circuit’s decision is important for 2 reasons: (1) While a private employer may lawfully adopt a rule that it will not hire applicants who have prior bankruptcy filings, a private employer should not apply that rule to an existing employee; the statute expressly bars termination from employment because of a bankruptcy filing; and (2) Any private employer should uniformly follow any rule that it adopts against hiring applicants with bankruptcy filing histories; failing to apply the Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  27. 27. rule uniformly may lead to pretext claims (e.g., an applicant may cite non- uniform application in support of a claim that race or gender, not bankruptcy, was the reason for non-hire).C. FLSA: Attorneys Fees Avoided if Employer Tenders Overtime Pay. Dionne v. Floormasters Entrs., Inc., 667 F.3d 1199 (11th Cir. 2012). The sole issue in this case is whether an employer, who denies liability for nonpayment for overtime work, must pay attorney’s fees and costs pursuant to 29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”) if the employer tenders the full amount of claimed overtime pay, moves to dismiss the claim as moot, and the employee concedes the claim should be dismissed as moot. The Eleventh Circuit held that “under such circumstances, the dismissal of the employee’s complaint, without an award of attorney’s fees, is not erroneous pursuant to § 216(b) because the District Court did not award judgment to the employee as the prevailing party.” On February 10, 2012, the Middle District of Florida followed the Dionne decision, and ruled in favor of the employer in Gilliam vs. WalMart Stores East, LP, Case No. 2:11-cv-454-FtM-29SPC (M.D.Fla. Feb. 10, 2012). In Gilliam, the employee sought a total of $583.50 plus liquidated damages for unpaid overtime compensation under the FLSA. The employer did not admit liability and tendered payment of $1,167.00, which included the liquidated damages amount claimed. Thereafter, the court granted the employer’s request to dismiss the Complaint with prejudice. The court reasoned that the employee was never awarded judgment as the “prevailing party” so as to trigger the attorney’s fees provision of the FLSA. For employers, the Dionne and Gilliam decisions are important because they indicate that employers should immediately engage in an assessment of an employee’s claim of unpaid overtime compensation and, if valid, tender payment. Under these circumstances, an employer may be able to avoid payment of attorneys fees, which ultimately could prove substantial depending on the size of the claim.D. Pre-Eligible Request for Leave Under the FMLA Protected. Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269 (11th Cir. 2012). According to the Eleventh Circuit in Pereda, an employee’s Family Medical Leave Act (“FMLA”) request made before she is eligible is protected when the requested leave would take place after she becomes FMLA-eligible. Plaintiff alleged she informed her employer that she would be requesting FMLA leave after the birth of her child. However, at the time, she was not yet eligible under the FMLA because she had not been employed for at least Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  28. 28. 12 months. The plaintiff expected to give birth after the expiration of the requisite 12-month period. Nevertheless, the employee was fired during her eleventh month of employment. After being terminated, the employee filed a lawsuit alleging the employer interfered with her FMLA rights and retaliated against her for requesting FMLA leave. The Eleventh Circuit concluded that without protecting against pre-eligibility interference, a loophole would be created whereby an employer has total freedom to terminate an employee before he/she can ever become eligible. According to the Eleventh Circuit, such a situation is contrary to the basic purpose of the FMLA: to balance work and family life by allowing employees to take unpaid leave for certain periods of time for specific medical and family related reasons. To hold otherwise would have allowed employers to terminate employees who had a foreseeable medical condition and gave employers notice of such condition. In light of the Eleventh Circuit’s holding, when considering requests for FMLA leave, employers must consider not only whether the employee is eligible for leave at the time of the request, but whether the employee will be eligible at the time the leave period will commence. Employers should exercise caution when electing to terminate or take an adverse action against an employee that has made a request for FMLA leave or indicated their intention to make a future request for FMLA qualifying leave.E. Employee’s Failure To Utilize Harassment Policy Aids Employer Victory In Harassment Case. Leeth v. Tyson Foods, Inc., 449 Fed.Appx. 849 (11th Cir. 2011). The Eleventh Circuit affirmed summary judgment for Tyson Foods on an employee’s sexual harassment and retaliation claims based on the employee’s failure to take advantage of the employer’s anti-harassment policy, and because the employer presented legitimate, non-retaliatory, and non- pretextual reasons for taking alleged adverse employment actions against the employee. In 2005, Leeth sued Tyson Foods alleging that her shift superintendent had sexually harassed her over a period of 20 years, from the time she began employment in 1985 until the filing of her EEOC Charge in 2005. Her allegations included that the superintendent made repeated sexual advances, both in person and over the telephone, and tried to touch her inappropriately. However, on the only two occasions when Leeth allegedly complained about the harassment, her complaints were vague, and she specifically asked that the employer not pursue the matter. The Eleventh Circuit affirmed the District Court’s finding that the alleged harassment was not sufficiently severe or pervasive to alter the terms and Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  29. 29. conditions of employment and create a hostile work environment. “Certainly, Leeth was annoyed by Bailey’s actions, but there is no evidence of threats, quid pro quo offers, and overt sexual actions other than a few insinuating comments.” More significantly, the Court found that Leeth failed to take advantage of the employer’s anti-harassment policy, because she failed to provide specifics regarding the alleged harassing conduct, and specifically requested that the employer not investigate the matter. “We have held ... that if the plaintiff did not want the harassing behavior reported or acted upon, then the employer would not have been placed on proper notice of the harassment.”(quoting Nurse BE v. Columbia Palms West Hosp. Ltd. Partnership, 490 F.3d 1302, 1310 (11th cir. 2007)) As a result, the employer asserted a successful affirmative defense under Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Under Faragher/Ellerth, if the plaintiff has not suffered an adverse, tangible employment action as a result of the alleged harassment, the employer may establish an affirmative defense by demonstrating “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Moreover, Tyson established legitimate nonretaliatory reasons for its subsequent decision to (1) temporarily transfer Leeth to a different job, because of staffing shortages and Leeth’s relevant experience as compared to other employees, and (2) suspending Leeth for refusing to perform the work requested, because although Leeth may have had legitimate medical reasons for refusing to do the work, suffering from tendinitis, as she claimed, “is not a protected activity under Title VII.” The Court specifically noted that “Leeth’s attempts to demonstrate pretext are little more than conclusory statements to the effect that the actions were retaliatory because they were obviously done in retaliation.” With no specific evidence of pretext, the Court found no basis for a fact finder to question Tyson’s legitimate, nondiscriminatory reasons for its actions. GEORGIA New Case LawA. Georgia District Court Strikes Portions of New Immigration Law as Preempted. Georgia Latino Alliance for Human Rights, et al. v. Deal, et al., No. 1:11- CV-1804-TWT (N.D. Ga. June 27, 2011). Determining parts of Georgia’s new immigration law (HB 87) were preempted by federal law, U.S. District Judge Thomas W. Thrash, Jr., issued a preliminary injunction against two sections of the state law. First, the court enjoined enforcement of Section 7, Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  30. 30. which prohibits individuals who have previously committed a separate criminal offense from: (1) knowingly and intentionally transporting or moving an illegal alien to further the illegal’s stay in Georgia; (2) knowingly concealing harboring or shielding an illegal alien from detection in Georgia; and (3) inducing, enticing, or assisting an illegal alien to enter Georgia. Second, the court enjoined enforcement of Section 8, which authorizes local law enforcement officers to verify the immigration status of any suspect if the officer has probable cause to believe the suspect has committed a criminal violation. Both of these sections were to take effect on July 1, 2011. The State has appealed the ruling to the 11th Circuit, where it remains pending. The rest of the law’s provisions remain intact. Significantly, the ruling does not affect requirements that businesses in Georgia register with and begin using the federal E-Verify program and check the legal status of new hires. Businesses with 500 employees or more must begin using E-Verify on January 1, 2012. Businesses with 100 to 499 employees must begin on July 1, 2012, and those with 11 to 99 employees must begin on July 1, 2013.B. Court Finds Exotic Dancers are Employees, Not Independent Contractors. Clincy v. Galardi Ents, Inc., 1:09-CV-2082-RWS (N.D. Ga. September 17, 2011). The court granted plaintiffs’ motion for summary judgment and denied defendants’ cross motion, holding that plaintiffs- exotic dancers or strippers- were employees of the defendant club owners, not independent contractors. Accordingly, plaintiffs were entitled to minimum wages and overtime pursuant to the Fair Labor Standards Act. In reaching its determination, the court found significant that the defendants set the prices for tableside dances and how much of their gross receipts dancers were required to turn over in the form of “house fees” and disc jockey fees. The court also noted that the defendants set specific schedules for the dancers, created rules of conduct, disciplined, and had the dancers check-in and check-out procedures and otherwise controlled the method and manner in which plaintiffs worked. Finally, the court recognized that several other courts had concluded that exotic dancers were employees, not independent contractors. Thus, the court rejected defendants’ arguments that the dancers were contractors because they were required to sign independent contractor agreements, were paid directly by customers, because the club purportedly did not profit from the dancers, and because the dancers did not necessarily drive the club’s business. Although not a novel decision, Clincy is significant because the majority of strip clubs around the country continue to disregard court decisions that have held that most strippers, employed under circumstances similar to those in the case, are actually employees. Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  31. 31. C. Georgia Court of Appeals Rejects Application of Trade Secrets Act to Investor Lists. Sutter Capital Management LLC v. Wells Capital Inc., No. A11A0649 (Ga. Ct. App. July 13, 2011). In a decision clarifying the ambit of Georgia’s trade secrets law, the Georgia Court of Appeals reversed the grant of summary judgment to Wells Capital Inc. and Wells Partners L.P. in their action against Sutter Capital Management LLC and Sutter Opportunity Fund 3 LLC, holding that the plaintiffs’ investor lists did not constitute trade secrets. The plaintiffs maintained that the defendants misappropriated a confidential list of the plaintiffs’ investors in contravention of the Georgia Trade Secrets Act. In finding that the investor lists did not constitute trade secrets, the court found that the plaintiffs failed to show that the lists “derived economic value, either actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who could obtain economic value from their disclosure or use,” as required by the Act. Employment Law NewsA. Georgia’s Governor Signs Garnishment Reform Bill. On February 7, 2012, Governor Nathan Deal signed legislation immediately repealing a court-imposed mandate that companies use lawyers to handle garnishment responses filed in Georgia courts. Last year, the Georgia Supreme Court ruled that responding to a garnishment constitutes the practice of law, and thus requires a lawyer. The passage of this legislation, however, means that effective immediately, employers may resume the practice of relying on in-house human resources or payroll employees to handle garnishments. “Reducing the amount of unnecessary legal fees is just one step in making Georgia the No.1 place to do business,” Deal said in a statement.B. Georgia Lawmakers Pass Illegal Immigration Reform and Enforcement Act. Signed by Governor Deal in May 2011, the Georgia Illegal Immigration Reform and Enforcement Act (the “Act”) substantially resembles Arizona’s controversial Senate Bill 1070 and “creates new requirements for many Georgia businesses to ensure new hires are eligible to work in the United States and empowers police to investigate the immigration status of certain suspects.” Among the new regulations is a requirement for Georgia businesses with more than 10 employees to use the federal E-verify program, which helps companies confirm whether their new hires are eligible to work in the United Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601
  32. 32. States. The Act gives companies found to have committed a “good-faith” violation of the E-Verify mandate 30 days to comply with the law. The Act also: Empowers local and state police to arrest illegal immigrants and transport them to state and federal jails; (see Georgia Latino Alliance for Human Rights, et al. v. Deal, et al.) Punishes people who use fake identification to get a job in Georgia with up to 15 years in prison and up to $250,000 in fines; Penalizes people who – while committing another crime – knowingly transport or harbor illegal immigrants or encourage them to come to Georgia. First-time offenders would face imprisonment for up to 12 months and up to $1,000 in fines; (see Georgia Latino Alliance for Human Rights, et al. v. Deal, et al.) Establishes a seven-member Immigration Enforcement Review Board to investigate complaints about local and state government officials not enforcing state immigration-related laws; Directs the state Agriculture Department to study the possibility of creating Georgia’s own guest worker program. Some Georgia employers have complained the federal government’s guest worker program is too burdensome and expensive. Note that, although the law became effective in Georgia on July 1, 2011, two particular provisions have been enjoined by a federal district court, subject to the review of the Eleventh Circuit Court of Appeals. (See “Georgia District Court Strikes Portions of New Immigration Law as Preempted” above.) Georgia Restrictive Covenant Law NewsA. The Georgia Restrictive Covenants Act Signed Into Law. On May 11, 2011, Governor Nathan Deal signed into law the Georgia Restrictive Covenant Act (the “Act”), which immediately took effect and is codified at O.C.G.A. §13-8-50 et. seq. The Act dramatically changes the enforceability of restrictive covenants in employment agreements and corporate contracts entered into on or after the Act’s May 11, 2011 effective date. The Act changes current case law in five key areas by: (1) expressly permitting restrictive covenants, including noncompete covenants; (2) relaxing certain standards under existing case law for drafting enforceable Jason D’Cruz Morris, Manning & Martin, LLP rjd@mmmlaw.com (404) 504-7601

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