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Avoiding Workplace Pitfalls for Domestic and Foreign Workers - Discrimination Claims


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Employment lawsuits and government audits and investigations are at a record high. In 2013 the government settled the largest immigration fine in history with a Plano, TX based company in the amount of $34 million for charges of visa and I-9 non-compliance. Avoid the penalties, damages, and negative publicity for those who have been caught unaware. Regardless of size or industry, your company must be able to prove its observance of federal and state employment laws and regulations concerning both domestic and foreign workers. The Frisco Chamber of Commerce International Business Council and Cowles & Thompson, PC present three educational events to help your organization meet regulatory challenges for your domestic and foreign employee workforce.
This presentation gives tips and tools to prevent and defend against employment and immigration discrimination claims.

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Avoiding Workplace Pitfalls for Domestic and Foreign Workers - Discrimination Claims

  1. 1. Avoiding Workplace Pitfalls Domestic and Foreign Employee Compliance Session II – Preventing and Defending Discrimination Claims
  2. 2. Agenda 1 2 3 Discrimination Claims and North Texas Businesses Immigration Anti-Discrimination Pitfalls How to Prevent and Defend Employment Discrimination Claims
  3. 3. Discrimination Claims & North Texas Businesses Mark Hill Shareholder, Cowles & Thompson, P.C.
  4. 4. Legal Landscape  100s of claims are filed in North Texas State and Federal Courts everyday.  Employment claims against local businesses are an increasing part of the legal landscape in Collin, Dallas and surrounding counties.
  5. 5. Most Common Business Claims Fiduciary cases Contract cases EMPLOYMENT cases
  6. 6. Employment Cases Non-compete Confidentiality & Trade Secret FLSA Discrimination
  7. 7. Common Types of Discrimination Disability Race, National Origin Age Gender Religion
  8. 8. Discrimination Claims Filed within Last 2 Weeks!
  9. 9. Disability Claims Oil & Gas Company •Amnesia, Medications (pro se) Consulting Business • Carpal Tunnel Retail Business • Cancer, Treatment
  10. 10. Race/National Origin Claims Automotive Business •Terminated, Retaliation Claim Telecommunications Company • Performance Hospitality Business • Harassment
  11. 11. Age Claims Retail Business • Harassment, Policy Financial Institution • Termination
  12. 12. What can the Business Owner do?
  13. 13. (…and how to help your case) Written Policy Consistent Documentation Preserve Records/File
  14. 14. (…and how to help your case) Evaluate Termination Basis Witness ID & Review Be Cautious with Communications
  15. 15. Recent Experiences DFW Medical Center Plano Technology Manufacturer
  16. 16. How to Prevent and Defend Employment Discrimination Claims Brian Farrington Shareholder, Cowles & Thompson, P.C
  17. 17. Discrimination What is Discrimination? -not necessarily unfair or unreasonable What is the legal meaning of discrimination? -Adverse action against people because of protected group membership. So, it’s illegal to discriminate because of:
  18. 18. Who is Protected? -Race (Title VII of Civil Rights Act of 1964) -Color (Title VII) -National Origin (Title VII) -Religion (Title VII) -Sex (Title VII) -Age, 40 and up (Age Discrimination in Employment Act—ADEA) -Disability (Americans With Disabilities Act—ADA)
  19. 19. Who is Protected? In Texas, these laws only apply to employers who have: -15 or more employees -on the payroll -for at least 20 weeks -of the current or preceding calendar year Other states have lower thresholds, or even cover all employers
  20. 20. Who is Protected? States can also create additional protected groups—e.g., -Sexual Orientation -Marital Status -Off Duty Use of Legal Products
  21. 21. Direct Evidence of Discrimination How do employees prove discrimination? One way is where there is DIRECT EVIDENCE of employment decisions motivated by protected group membership—e.g., Slack v. Havens
  22. 22. Disparate Treatment Where there is no direct evidence, there may be INDIRECT EVIDENCE. The most common model of a discrimination claim is DISPARATE TREATMENT (a/k/a the “SHIFTING BURDEN analysis”).
  23. 23. Disparate Treatment Step 1: Employee must make a prima facie case. In a typical firing case, for example, here are the elements: -Member of protected group -Suffers an adverse action -Qualified for the job -Replaced
  24. 24. Disparate Treatment Step 2: Employer must “articulate” a “legitimate, non-discriminatory reason” for the adverse action. At this point, the Employer relies on:
  25. 25. Disparate Treatment DOCUMENTATION -write-ups, performance appraisals, production records, attendance, etc. CONSISTENCY -with what Employer said it would do (e.g., policies); and -with what Employer has done in similar situations in the past
  26. 26. Disparate Treatment Step 3: Burden shifts back to the Employee: -PROVE that the reasons given by the Employer are false -In the past, Employer would then have to show false reason was “pretext” for discrimination -Now, just giving false reasons allows jury to infer a discriminatory motive
  27. 27. In Hiring, Promotions: Where a “facially neutral policy” has a harsher result for one or more protected groups than for others, it can be discriminatory. Examples: -Height requirements in police departments -Unnecessary education/training requirements Disparate Treatment
  28. 28. First articulated in Griggs v. Duke Power Co.: -prior to July 2, 1965, company would not hire Blacks -started hiring Blacks on July 2, 1965, but also started requiring high school diploma -in N. Carolina, only 11% of Blacks had diplomas (31% of Whites) So HS graduation requirement had DISPARATE IMPACT on Black applicants. Disparate Treatment
  29. 29. If a criterion has a disparate impact, it is NOT automatically illegal. BUT: Employer must PROVE that the standard is “job related” and “consistent with business necessity.” Disparate Treatment
  30. 30. EEOC is looking very hard at such disparate treatment issues as: -Criminal background checks (“ban the box”) =must consider nature of offense, elapsed time, subsequent history, relation of offense to job. -Credit checks Disparate Treatment
  31. 31. “4/5ths” Rule: -if pass rate of any group is less than 80% of pass rate for other group(s), there is a disparate impact Disparate Treatment
  32. 32. Testing: How does Employer prove a test that has a disparate impact is job related and consistent with business necessity? Uniform Guidelines on Employee Selection Procedures—29 CFR 1607 Three ways to show test is valid Disparate Treatment
  33. 33. 1.Measures a skill or aptitude required by the job—e.g., typing test. 2.Identifies personality traits or aptitudes which are important to the job—e.g., communication skills in sales employees 3. Predicts success on the job—history shows that the better candidates do, the more likely they are to succeed. Disparate Treatment
  34. 34. Pregnancy Gilbert v. General Electric, 1976—discrimination against pregnant people NOT sex discrimination Pregnancy Discrimination Act, 1978—Oh yes it is! Pregnancy must be treated as any other temporary medical disability (but no special treatment or accommodation required)
  35. 35. Health insurance and income maintenance benefits must be equal Seniority of female on maternity leave continues Exception (BFOQ) very narrowly interpreted -UAW v. Johnson Controls: as long as pregancy does not interfere with ability to perform job, employee must be allowed to work Pregnancy
  36. 36. PDA does not require maternity leave, but FMLA does. Family Medical Leave Act: covered employers must provide up to 12 weeks job protected leave for pregnancy (and other serious health conditions). “Covered Employer” has 50 employees, or is government agency. Pregnancy
  37. 37. Eligible Employee: -worked for employer for 12 months -in 12 months preceding leave, worked 1,250 hours or more -works at a location where employer has at least 50 employees within 75 miles Pregnancy
  38. 38. Although PDA does not require “accommodations,” and ADA does not define pregnancy as a disability, EEOC is looking very hard at ways to protect pregnant employees. New guidance issued by EEOC recently points out that many conditions associated with pregnancy can be disabilities, and would require accommodation. Pregnancy
  39. 39. Sexual Harassment "Quid Pro Quo“ -Exchange of job favors for sexual favors. -Done by Supervisor/Agent -Company is responsible.
  40. 40. Hostile or Offensive Environment -"Unwelcome" sexual advances. -Objectively offensive—reasonable person in the place of the victim would find conduct offensive Sexual Harassment
  41. 41. "Unwelcome" Physical or Verbal Conduct of a Sexual Nature -"Unwelcome" - both objectively and subjectively -Must be serious and pervasive, not isolated or incidental Sexual Harassment
  42. 42. -Physical conduct - touching, etc. - even one incident may be enough. -Verbal =Comments on body, clothing, appearance =Jokes =Description/questions on love life =Miscellaneous—Pictures, novelties Sexual Harassment
  43. 43. Company Liability—If hostile environment created by co-worker, company is not liable if: -Company did not know of conduct. -Company had no reasonable way to know. -Anti-harassment policy/complaint mechanism is in place Sexual Harassment
  44. 44. Hostile or offensive environment if supervisor does it: -If supervisor does it, and a tangible job detriment occurs (e.g., demotion, discharge), employer is strictly liable -If supervisor does it, and no tangible job detriment occurs, company is liable but can raise affirmative defense Sexual Harassment
  45. 45. Affirmative Defense -Company has widely disseminated and effective internal complaint process -Employee does not take advantage of internal complaint process Sexual Harassment
  46. 46. Disability Americans with Disabilities Act (ADA) Definition of "disability:" -any physical or mental condition which substantially limits one or more of an individual's major life activities; or -a record of such impairment; or -being regarded as having such an impairment
  47. 47. Disability Qualified individual with disability -meets basic qualifications (education, experience, etc.) -can, with or without reasonable accommodation, perform essential functions of job
  48. 48. Disability -Requires "reasonable accommodation" unless "undue hardship" - tough definition of undue hardship -Forbids any pre-offer inquiries about health/disability
  49. 49. Age Discrimination -Protected group is age 40 & up -NO MANDATORY RETIREMENT! -RIF's, layoffs - modified prima facie case =RIF criteria applied uniformly =statistics alone don’t make a case (but support one)
  50. 50. Religion Reasonable accommodation required, unless more than de minimus cost Conflict with dress and grooming codes Observance of holidays, etc.
  51. 51. Interviews/Applications If you need to know, ask; if not, don't: -Age, date of birth - child labor only -Race, religion, national origin - NO! (not even a photo)
  52. 52. Interviews/Applications Disability, etc. -Have job description listing essential functions -Ask only if can perform essential function -If applicant initiates it, discuss reasonable accommodations
  53. 53. -Education - only to the extent relevant -Sex, marital status, family, etc. - don't ask -Arrest, conviction, deferred adjudication - you may ask about convictions only - have disclaimer Interviews/Applications
  54. 54. -Garnishment - No -Bankruptcy - No -Citizenship - No. Say that the company, in compliance with IRCA, requires proof of identity and eligibility to work. (I-9) Interviews/Applications
  55. 55. Application Form -EEO statement -Authorization for pre-employment testing -Misleading, inaccurate information or omissions grounds for termination Interviews/Applications
  56. 56. -Authorization for previous employers, schools, etc. to provide or confirm information. Release these from liability. -Statement of at-will status (cannot be varied by anyone except --) Interviews/Applications
  57. 57. Pre-employment inquiry guide – lists acceptable and unacceptable questions – most states with anti-discrimination laws have them—get one! Interviews/Applications
  58. 58. Terminations Do a risk profile: -Warning and chance to improve (unless must fire ASAP) -Consistent with own policy -Age -Sex (pregnant?) -Effect on EEO profile
  59. 59. -Seniority -Replacement -Adequate documentation -Consistent with previous actions in similar situations -Recently on medical/workers comp leave Terminations
  60. 60. Termination Interview -Rehearse -Employer witness (who takes notes) -Choose time and place to minimize discomfort, embarrassment, humiliation Terminations
  61. 61. -Brief and clean - not too specific -Don't argue -Don't let them down too easily -Explain any benefits, last paycheck, payment of vacation/sick/severance, COBRA, etc. Terminations
  62. 62. -Allow opportunity to vent (he may even agree - good at trial!) -No improper comments, and don't be trapped into making them -Detailed narrative later - signed by both Terminations
  63. 63. Immigration Anti-Discrimination Pitfalls Angela M. Lopez Shareholder, Cowles & Thompson, P.C
  64. 64. Department of Homeland Security U.S. Citizenship and Immigration Service (USCIS) - immigration benefits and services U.S. Customs and Border Protection (CBP) – – border patrol and international travel facilitation
  65. 65. Department of Homeland Security Immigration and Customs Enforcement Investigates employers for compliance with employment employer verification rules and removes undocumented aliens from the United States
  66. 66. U.S. Department of Labor Investigates employer verification compliance, visa compliance, violation of worker rules
  67. 67. U.S. Department of Justice Office of Special Counsel (OSC) Investigates and prosecutes charges of immigration-related unfair employment practices
  68. 68. Prohibited Conduct Citizenship or Immigration Status Discrimination National Origin Discrimination Document Abuse Retaliation or Intimidation
  69. 69. Citizenship/Immigration Status Discrimination Prohibits different treatment because of citizenship or immigration status Protects US citizens, recent permanent residents, temporary residents, asylees or refugees only
  70. 70. National Origin Discrimination Prohibits different treatment because of place of birth, country of origin, ancestry, native language, accent, or looks or sounds “foreign” Protects ALL work authorized individuals
  71. 71. Document Abuse Prohibits request for more or different documents than required or rejection of genuine-looking documents Prohibits requirement of specific documents based upon citizenship status or national origin Protects ALL work authorized individuals
  72. 72. Common Mistakes Your supervisor catches you before you start interviewing applicants for a job. She says, “Find out if those two near the door have their ‘green cards’ before you waste your time. Did you discriminate in hiring?
  73. 73. Common Mistakes As president of your company, you issue a memo stating, “Please be careful when hiring people who look like they crossed the border illegally.” Have you committed national origin discrimination?
  74. 74. Common Mistakes You find two equally qualified candidates to fill one position. In deciding between the two, you decide on one because he is a permanent resident and the other, an asylee, only has a temporary work permit (EAD). Have you committed citizenship status discrimination?
  75. 75. Common Mistakes You implement an employee referral program. Unofficially, you tell employees that you prefer they only refer applicants who are U.S. citizens. Are you in compliance with the INA?
  76. 76. Common Mistakes You hire Angela Lopez and are surprised when she hands you a state-issued driver’s license and an unrestricted Social Security card for her I-9 form. You say, “I must see a card issued by the USCIS.” Does Angela have a case against you?
  77. 77. Penalties for Anti-Discrimination Violations $100 to $16000 depending upon the violation Back pay (no more than 2 years before claim was filed) Hire or re-hire Personnel Training Attorney Fees
  78. 78. Recent OSC Settlements June 12, 2014 Violation: Commercial Cleaning Systems required work- authorized non-U.S. citizens to present specific documents issued by the USCIS in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation. Settlement: $53,500 in civil penalties, $25,000 back pay fund a result of the company’s discriminatory document practices, and government oversight of its employment eligibility verification practices for one year.
  79. 79. Recent OSC Settlements May 7, 2014 Violation: Master Klean Janitorial subjected work-authorized non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation. Settlement: $75,000 in civil penalties, undergo training on the anti-discrimination rules, revise employment eligibility verification policies, and government oversight of its employment eligibility verification practices for one year.
  80. 80. Recent OSC Settlements April 24, 2014 Violation: El Rancho required lawful permanent residents to present a new employment eligibility document after being hired when their Permanent Resident cards expired, even though the Form I-9 and E-Verify rules prohibit this practice because lawful permanent residents have permanent work authorization in the United States, even after their Permanent Resident cards expire. Settlement: $43,000 in civil penalties, undergo training on the antidiscrimination rules, and government oversight of its employment eligibility verification practices for one year.
  81. 81. OSC Stats and Trends During Fiscal Year 2013, the Office of Special Counsel set a new record by collecting almost $900,000 in civil penalties under the anti-discrimination provision of the INA. Over the same period, the Office also collected over $250,000 in back pay relief for victims of discrimination.
  82. 82. OSC Referral Sources USCIS Department of Labor – Wage & Hour Legal Aid Bureaus Immigrant Advocacy EEOC
  83. 83. What to Do Next? Facts of each case are different. The general information provided here should not be relied and is not legal advice. Consult with an experienced attorney to get the right advice for your specific circumstances.
  84. 84. 901 Main Street Suite 3900 Dallas, Texas 75202 214-672-2000 How to connect with us