In recent years, the U.S. Supreme Court has broadly read anti-retaliation provisions of federal labor laws, rejecting technical challenges based on interpretations of such statutes.
On Monday, the Court unanimously continued this trend, allowing a Title VII retaliation suit by the fiancée of an employee who filed an EEOC Charge against their common employer.
In Thompson v. North American Stainless, LP, the plaintiff's fiancée filed an EEOC Charge alleging sex discrimination. Three weeks later, the company terminated the plaintiff. He filed his own EEOC Charge, alleging that he was terminated in an attempt by the employer to retaliate against his fiancée.
The employer contended that under Title VII's anti-retaliation provision, the plaintiff had no standing to sue because he had not engaged in any protected activity under Title VII.
The Supreme Court disagreed, reversing the contrary decision of the Sixth Circuit Court of Appeals, and remanding the matter for possible trial. In its decision, the Court noted Congress' intent to apply Title VII's anti-retaliation provisions to a wide range of employer conduct.
Clearly, the plaintiff's fiancée was entitled to file her own retaliation complaint based on the termination. The Supreme Court refused to draw a line as to whether termination or negative action against any co-worker with whom the complaining employee has a relationship would constitute retaliation under Title VII. Each case must be individually reviewed.
In terms of the fiancée's independent right to file a Charge, the Court concluded that any aggrieved employee who falls within a "zone of interests" protected under Title VII may file a retaliation complaint. A fiancée of a complaining party is closely related enough to provide independent protection under the statute.
This reasoning may not apply to any co-worker who is a friend of the complaining party. This decision will surely trigger additional litigation by tangentially related employees who claim that some relationship with a co-worker who complained about discrimination motivated the employer to retaliate against them.
Employers seeking to discipline or terminate employees known to have a personal connection to a complaining party should make certain they can demonstrate legitimate business reasons unrelated to the Charge before taking such action.
EmployNews, ParkerPoe, Issue 604, January 28, 2011
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Interesting that I keep using the word "retaliation" when speaking with clients and the word keeps popping up in the news. As I have stated in the past, retaliation is extremely serious and all measures should be taken to prevent it. The above reference case is based on a U.S. Supreme Court decision, certainly not to be taken lightly.
Friday, January 28, 2011
Thursday, January 27, 2011
Technical Notification Failure Dooms FMLA Defense
Employer's Failure Allows FMLA Claim To Go Forward
The Story: A newspaper receptionist, who was allegedly fired for violation of her employer's attendance policy, had a triable Family and Medical Leave Act (FMLA) claim because the employer did not effectively trigger the plaintiff's obligation to provide medical certification of her condition, a circuit court decided.
Reversing summary judgment for Gannett Satellite Information Network, owner of the Dickson Herald in Tennessee, the circuit court determined that Gannett could not rely on employee Deborah Branham's failure to provide medical certification as a justification for denying her FMLA leave and firing her.
Instead, the court found that Branham satisfied her statutory obligation to notify the employer about her need for medical leave, and that Gannett "never properly triggered her additional duty to provide a medical certification supporting her claim."
In the case, a physician, Dr. Pamela Singer, examined Branham on November 13, and the doctor wrote a "negative certification" indicating Branham's condition was "normal," and that she should be able to return work November 14. Nevertheless, Branham remained absent for most of the subsequent two weeks, due to migraine headaches, nausea, depression, and insomnia.
On November 24, Gannett fired Branham for violation of the company's attendance policy, as she was absent after the date the doctor released her to work. On that same day, however, Gannett received a faxed certification form from a nurse practitioner in Dr. Singer's practice group, stating that Branham's illness began on May 6, and was expected to last until January 1, 2007.
The lower court ruled for Gannett, holding that the employer was entitled to rely on the negative certification—which denied leave to Branham—and Gannett did not have to wait for the completion of FMLA's fifteen-day certification period when Branham never indicated she was seeking a second opinion.
However, the Sixth Circuit reversed. It noted that it didn't have to deal with the question of the negative medical certification and the 15-day waiting period because Gannett did not take the prescribed steps to trigger Branham's obligation to provide medical certification in the first place.
The court determined that "Branham has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and Gannett was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by regulations."
Even if the company representative had discussed all the appropriate information, an oral request would have been "insufficient to activate Branham's certification duty," the court said.
As my current clients know, I talk a lot about issuing FMLA paperwork when an employee has been absent from work for three consecutive days or more (day four) for the same or related illness. It’s a lot less expensive to send out the certification form, and it not be needed, than to face the issues in the above case. Although they do not state the actual damages and monetary award in this case, it reads to have been substantial.
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
The Story: A newspaper receptionist, who was allegedly fired for violation of her employer's attendance policy, had a triable Family and Medical Leave Act (FMLA) claim because the employer did not effectively trigger the plaintiff's obligation to provide medical certification of her condition, a circuit court decided.
Reversing summary judgment for Gannett Satellite Information Network, owner of the Dickson Herald in Tennessee, the circuit court determined that Gannett could not rely on employee Deborah Branham's failure to provide medical certification as a justification for denying her FMLA leave and firing her.
Instead, the court found that Branham satisfied her statutory obligation to notify the employer about her need for medical leave, and that Gannett "never properly triggered her additional duty to provide a medical certification supporting her claim."
In the case, a physician, Dr. Pamela Singer, examined Branham on November 13, and the doctor wrote a "negative certification" indicating Branham's condition was "normal," and that she should be able to return work November 14. Nevertheless, Branham remained absent for most of the subsequent two weeks, due to migraine headaches, nausea, depression, and insomnia.
On November 24, Gannett fired Branham for violation of the company's attendance policy, as she was absent after the date the doctor released her to work. On that same day, however, Gannett received a faxed certification form from a nurse practitioner in Dr. Singer's practice group, stating that Branham's illness began on May 6, and was expected to last until January 1, 2007.
The lower court ruled for Gannett, holding that the employer was entitled to rely on the negative certification—which denied leave to Branham—and Gannett did not have to wait for the completion of FMLA's fifteen-day certification period when Branham never indicated she was seeking a second opinion.
However, the Sixth Circuit reversed. It noted that it didn't have to deal with the question of the negative medical certification and the 15-day waiting period because Gannett did not take the prescribed steps to trigger Branham's obligation to provide medical certification in the first place.
The court determined that "Branham has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and Gannett was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by regulations."
Even if the company representative had discussed all the appropriate information, an oral request would have been "insufficient to activate Branham's certification duty," the court said.
As my current clients know, I talk a lot about issuing FMLA paperwork when an employee has been absent from work for three consecutive days or more (day four) for the same or related illness. It’s a lot less expensive to send out the certification form, and it not be needed, than to face the issues in the above case. Although they do not state the actual damages and monetary award in this case, it reads to have been substantial.
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Prevent Employment Discrimination and Lawsuits
Employment Discrimination Lawsuits Are Escalating
In employment discrimination lawsuits, the business always loses. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success. Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of an employment discrimination lawsuit before you follow a few simple steps that could have prevented years of pain.
Employment Discrimination Law Suits Rising
Let’s start by looking at the scope of the problem in employment discrimination lawsuits. U.S. Equal Employment Opportunity Commission (EEOC) statistics reveal that the highest number of employment discrimination charges in its 45 year history were filed in the fiscal year ending on September 30, 2010. The EEOC’s statistics about employment discrimination continue to demonstrate a three year trend of increased charge filing and litigation. Driven by the dismal economy, a bigger EEOC enforcement budget, and employee-friendly revisions to EEO laws, the employment discrimination lawsuit trend is expected to continue.
Key findings in the employment discrimination statistics reveal that in 2010:
•Retaliation discrimination is the most frequently cited form of employment discrimination (36,258 charges). Historically, retaliation complaints filed with the EEOC increased 44%, from 22,690 charges in 2003 to 32,690 in 2008.
•Retaliation is followed closely by race discrimination (35,890 charges).
•Employment discrimination hit new records for sex, national origin, religion, and disability discrimination charges.
•Employment disability discrimination charges increased nearly 20%, due in part, to the 2008 Americans with Disabilities Act Amendments Act (ADAAA).
•The EEOC handled its first employment discrimination charges brought under the Genetic Information Nondiscrimination Act (GINA).
•The EEOC received almost 31,000 charges alleging unlawful harassment; 11,717 were sexual harassment charges. The majority of harassment charges alleged some form of harassment, other than sexual harassment, such as race, national origin, or religious harassment.
The EEOC also reported that it secured more than $404 million in monetary benefits for individuals - the highest level of relief obtained through administrative enforcement in the Commission's history.
Rising Costs of EEOC Suits Expensive for Employers
From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization. Atkins says that these include the costs of:
•the distraction of an organization’s staff for months as documents are gathered and prepared, an internal investigation is conducted, and time is invested in fighting the claim,
•the loss of employee morale while under the constant pressure of a lawsuit,
•the potential loss of an employer’s reputation as an employer of choice for recruiting and retaining desirable employees, whether found guilty or innocent, and
•attorneys' fees which can cost as much or more than an eventual settlement, if the employer is found guilty.
In addition to these hard-to-quantify costs, Atkins says that the average single claimant lawsuit results in defense costs of $250,000 and a jury verdict of $200,000. Other sources place the average verdict awards even higher, at nearly $900,000 in 2007, with the average settlement nearly $550,000. In any case, jury awards are expensive for employers.
Class action lawsuits, which are also increasing, generally result in lower per claimant awards but can cost an employer millions of dollars in cash and untold millions in the above employee costs listed. Also note that it only takes three employees who have the same or similar charge to constitute a class action law suit. It’s not just the giants in business, it can be anyone.
While the potential costs of employment discrimination lawsuits are high, on the plus side, employers have some recourse. Employees who feel they are experiencing employment discrimination should first use the employer’s internal complaint system. This gives the employer the opportunity to investigate the alleged employment discrimination and provide recourse through their normal complaint resolution process.
Employees who do not believe that their complaint was adequately addressed by their employer, and in situations where the harassment or discrimination behavior continues, may file a claim with the EEOC.
What Employers Can Do to Prevent Employment Discrimination
Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits. Further, their employment discrimination policies, preventions, and practices can work in their favor in an employment discrimination lawsuit. If the employer can demonstrate the following preventative actions, the employer may escape significant damages.
Employers are advised to prevent employment discrimination and create a workplace culture that discourages employment discrimination, harassment, and retaliation, with these actions.
•Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment or retaliation to the company. Preferably employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
The employment discrimination policy should also communicate how an employee’s complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders. The employment discrimination policy should also discuss the nature of retaliation and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
•Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur. Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment or retaliation situations.
•Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination, and all forms of harassment and retaliation should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
•Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint through to appeal, when necessary.
As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, employee preventative training.
Your good faith efforts to prevent employment discrimination, harassment, and retaliation may serve you well – increasingly important in the litigious future.
By Susan M. Heathfield, About.com Guide
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
In employment discrimination lawsuits, the business always loses. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success. Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of an employment discrimination lawsuit before you follow a few simple steps that could have prevented years of pain.
Employment Discrimination Law Suits Rising
Let’s start by looking at the scope of the problem in employment discrimination lawsuits. U.S. Equal Employment Opportunity Commission (EEOC) statistics reveal that the highest number of employment discrimination charges in its 45 year history were filed in the fiscal year ending on September 30, 2010. The EEOC’s statistics about employment discrimination continue to demonstrate a three year trend of increased charge filing and litigation. Driven by the dismal economy, a bigger EEOC enforcement budget, and employee-friendly revisions to EEO laws, the employment discrimination lawsuit trend is expected to continue.
Key findings in the employment discrimination statistics reveal that in 2010:
•Retaliation discrimination is the most frequently cited form of employment discrimination (36,258 charges). Historically, retaliation complaints filed with the EEOC increased 44%, from 22,690 charges in 2003 to 32,690 in 2008.
•Retaliation is followed closely by race discrimination (35,890 charges).
•Employment discrimination hit new records for sex, national origin, religion, and disability discrimination charges.
•Employment disability discrimination charges increased nearly 20%, due in part, to the 2008 Americans with Disabilities Act Amendments Act (ADAAA).
•The EEOC handled its first employment discrimination charges brought under the Genetic Information Nondiscrimination Act (GINA).
•The EEOC received almost 31,000 charges alleging unlawful harassment; 11,717 were sexual harassment charges. The majority of harassment charges alleged some form of harassment, other than sexual harassment, such as race, national origin, or religious harassment.
The EEOC also reported that it secured more than $404 million in monetary benefits for individuals - the highest level of relief obtained through administrative enforcement in the Commission's history.
Rising Costs of EEOC Suits Expensive for Employers
From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization. Atkins says that these include the costs of:
•the distraction of an organization’s staff for months as documents are gathered and prepared, an internal investigation is conducted, and time is invested in fighting the claim,
•the loss of employee morale while under the constant pressure of a lawsuit,
•the potential loss of an employer’s reputation as an employer of choice for recruiting and retaining desirable employees, whether found guilty or innocent, and
•attorneys' fees which can cost as much or more than an eventual settlement, if the employer is found guilty.
In addition to these hard-to-quantify costs, Atkins says that the average single claimant lawsuit results in defense costs of $250,000 and a jury verdict of $200,000. Other sources place the average verdict awards even higher, at nearly $900,000 in 2007, with the average settlement nearly $550,000. In any case, jury awards are expensive for employers.
Class action lawsuits, which are also increasing, generally result in lower per claimant awards but can cost an employer millions of dollars in cash and untold millions in the above employee costs listed. Also note that it only takes three employees who have the same or similar charge to constitute a class action law suit. It’s not just the giants in business, it can be anyone.
While the potential costs of employment discrimination lawsuits are high, on the plus side, employers have some recourse. Employees who feel they are experiencing employment discrimination should first use the employer’s internal complaint system. This gives the employer the opportunity to investigate the alleged employment discrimination and provide recourse through their normal complaint resolution process.
Employees who do not believe that their complaint was adequately addressed by their employer, and in situations where the harassment or discrimination behavior continues, may file a claim with the EEOC.
What Employers Can Do to Prevent Employment Discrimination
Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits. Further, their employment discrimination policies, preventions, and practices can work in their favor in an employment discrimination lawsuit. If the employer can demonstrate the following preventative actions, the employer may escape significant damages.
Employers are advised to prevent employment discrimination and create a workplace culture that discourages employment discrimination, harassment, and retaliation, with these actions.
•Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment or retaliation to the company. Preferably employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
The employment discrimination policy should also communicate how an employee’s complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders. The employment discrimination policy should also discuss the nature of retaliation and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
•Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur. Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment or retaliation situations.
•Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination, and all forms of harassment and retaliation should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
•Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint through to appeal, when necessary.
As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, employee preventative training.
Your good faith efforts to prevent employment discrimination, harassment, and retaliation may serve you well – increasingly important in the litigious future.
By Susan M. Heathfield, About.com Guide
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Retaliation is Illegal
Retaliation Definition:
Retaliation is revenge or reprisal. Retaliation means to get even, or to take revenge. But, retaliation in employment and the world of Human Resources has a much more specific meaning and connotation. In connection with charges of discrimination, retaliation is a serious issue for employers.
For employers, note that all of the laws that the U.S. Equal Employment Opportunity Commission (EEOC) enforces make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees for these reasons. The employee or applicant:
•filed a charge of discrimination,
•complained to their employer or other covered entity about discrimination on the job, or
•participated in an employment discrimination proceeding, such as an investigation or a lawsuit.
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, transfers or lateral moves, layoffs, training, benefits, and any other terms or conditions of employment.
An employee or applicant is protected by law from retaliation whether his or her charges are proven true or false. This is to preserve and protect their rights, and to encourage employees or applicants who experience discrimination or retaliation to come forward and report it.
Retaliation can be stealthy and difficult to witness and document. This makes the obligation of the employer to regularly follow up with any applicant or employee who might face retaliation as a result of the reasons stated above, critical. The employer would be smart to document the regular follow-up and any charges of retaliation that are reported or witnessed as a result.
Employers must investigate a charge of retaliation, and even a rumor of retaliation, and document the investigation, its findings, and any disciplinary action that resulted. Following the investigation, the employer still has the obligation to continue to follow up to ensure that retaliation is not occurring.
A charge of retaliation, in the eyes of the courts and regulatory agencies, is worse than the reason the charge or complaint was filed in the first place.
By Susan M. Heathfield, About.com Guide
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Retaliation is revenge or reprisal. Retaliation means to get even, or to take revenge. But, retaliation in employment and the world of Human Resources has a much more specific meaning and connotation. In connection with charges of discrimination, retaliation is a serious issue for employers.
For employers, note that all of the laws that the U.S. Equal Employment Opportunity Commission (EEOC) enforces make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees for these reasons. The employee or applicant:
•filed a charge of discrimination,
•complained to their employer or other covered entity about discrimination on the job, or
•participated in an employment discrimination proceeding, such as an investigation or a lawsuit.
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, transfers or lateral moves, layoffs, training, benefits, and any other terms or conditions of employment.
An employee or applicant is protected by law from retaliation whether his or her charges are proven true or false. This is to preserve and protect their rights, and to encourage employees or applicants who experience discrimination or retaliation to come forward and report it.
Retaliation can be stealthy and difficult to witness and document. This makes the obligation of the employer to regularly follow up with any applicant or employee who might face retaliation as a result of the reasons stated above, critical. The employer would be smart to document the regular follow-up and any charges of retaliation that are reported or witnessed as a result.
Employers must investigate a charge of retaliation, and even a rumor of retaliation, and document the investigation, its findings, and any disciplinary action that resulted. Following the investigation, the employer still has the obligation to continue to follow up to ensure that retaliation is not occurring.
A charge of retaliation, in the eyes of the courts and regulatory agencies, is worse than the reason the charge or complaint was filed in the first place.
By Susan M. Heathfield, About.com Guide
Edited for use in this blog.
The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115
Sunday, January 23, 2011
NLRB Challenges Employers’ Social Networking Policies
NLRB Challenges Employers’ Social Networking Policies
The National Labor Relations Board (NLRB) has recently taken aim at employer policies that restrict employees’ use of social media. In a recent case that could have far-reaching implications, the board’s Hartford Regional Office charged American Medical Response of Connecticut Inc. (AMR) with violating the National Labor Relations Act (NLRA) by terminating an employee for posting negative comments about her supervisor on her Facebook page. The NLRB investigation found that the employer’s social media policy interfered with employees’ rights under the NLRA by prohibiting employees from making disparaging remarks when discussing the company or supervisors and by prohibiting employees from depicting the company in any way over the Internet without company permission.
The NLRB’s Complaint
The NLRB’s complaint alleges that AMR, an ambulance service, illegally terminated one of its employees because she posted negative remarks about her supervisor on her personal Facebook page using her home computer. On the day in question, the supervisor allegedly asked the employee to prepare an investigative report concerning a customer complaint about her work. When the employee asked for union representation, her request was denied. After the employee posted the negative comments on Facebook, her co-workers chimed in with their own comments related to her post, which led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated as a result of the postings, as they violated AMR’s Internet policies.
Like many companies, AMR has a social media policy that prohibits employees from disparaging the company and its supervisors in social media posts, even when posting while off duty and using a personal computer. Specifically, AMR’s policy states: “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”
The NLRB’s complaint asserts that AMR’s application of its social networking policy unlawfully interfered with the employee’s right under Section 7 of the NLRA to engage in “concerted, protected activity”—in other words, the right to communicate with co-workers about the terms and conditions of employment. Comments are protected under the NLRA only if they are related to a term or condition of work and are concerted in nature. Comments are “concerted” where they involve more than one employee, thus making the co-workers’ Facebook postings in the AMR case significant. Significantly, Section 7 applies to employees’ protected, concerted activity regardless of whether the workplace is actually unionized. Further, and perhaps most problematically, the NLRB’s complaint appears to allege that merely having in place an anti-disparagement social networking policy, like AMR’s, violates Section 7 even if the employer does not actually apply the policy to impose discipline.
Summarized for this blog.
January 3, 2011
Author: Patrick H. Hicks and Deborah L. Westbrook
The Whitford Group
704 298-2115
The National Labor Relations Board (NLRB) has recently taken aim at employer policies that restrict employees’ use of social media. In a recent case that could have far-reaching implications, the board’s Hartford Regional Office charged American Medical Response of Connecticut Inc. (AMR) with violating the National Labor Relations Act (NLRA) by terminating an employee for posting negative comments about her supervisor on her Facebook page. The NLRB investigation found that the employer’s social media policy interfered with employees’ rights under the NLRA by prohibiting employees from making disparaging remarks when discussing the company or supervisors and by prohibiting employees from depicting the company in any way over the Internet without company permission.
The NLRB’s Complaint
The NLRB’s complaint alleges that AMR, an ambulance service, illegally terminated one of its employees because she posted negative remarks about her supervisor on her personal Facebook page using her home computer. On the day in question, the supervisor allegedly asked the employee to prepare an investigative report concerning a customer complaint about her work. When the employee asked for union representation, her request was denied. After the employee posted the negative comments on Facebook, her co-workers chimed in with their own comments related to her post, which led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated as a result of the postings, as they violated AMR’s Internet policies.
Like many companies, AMR has a social media policy that prohibits employees from disparaging the company and its supervisors in social media posts, even when posting while off duty and using a personal computer. Specifically, AMR’s policy states: “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”
The NLRB’s complaint asserts that AMR’s application of its social networking policy unlawfully interfered with the employee’s right under Section 7 of the NLRA to engage in “concerted, protected activity”—in other words, the right to communicate with co-workers about the terms and conditions of employment. Comments are protected under the NLRA only if they are related to a term or condition of work and are concerted in nature. Comments are “concerted” where they involve more than one employee, thus making the co-workers’ Facebook postings in the AMR case significant. Significantly, Section 7 applies to employees’ protected, concerted activity regardless of whether the workplace is actually unionized. Further, and perhaps most problematically, the NLRB’s complaint appears to allege that merely having in place an anti-disparagement social networking policy, like AMR’s, violates Section 7 even if the employer does not actually apply the policy to impose discipline.
Summarized for this blog.
January 3, 2011
Author: Patrick H. Hicks and Deborah L. Westbrook
The Whitford Group
704 298-2115
I-9 Audits on the Rise in Obama Administration
This www.shrm.org article content was sent to you by: Jan Whitford SPHR
I-9 Audits on the Rise in Obama Administration
By Allen Smith
1/11/2011
Immigration raids have decreased and the number of I-9 audits has risen dramatically in the first two years of the Obama administration, according to immigration attorneys.
“In the past two years, the Obama administration has significantly changed the direction of Immigration and Customs Enforcement’s worksite efforts,” Kevin Lashus, an attorney with Greenberg Traurig in Austin, Texas, told SHRM Online. “The Bush administration was interested in taking the highest numbers of unauthorized workers into custody during any time frame. The Obama administration, on the other hand, is interested in targeting the employers that hired them.”
Criminal Prosecutions
While Immigration and Customs Enforcement (ICE) in the Bush administration locked down buildings and herded workers into interrogations and ultimately onto planes for removal, the Obama ICE has increased administrative fines and paper audits—after which employers are asked to dismiss unauthorized workers, Lashus said. Criminal prosecutions of employers also have risen under the Obama administration, he added.
“Raids the way they used to be are not used by ICE anymore,” agreed Mira Mdivani, an attorney with The Mdivani Law Firm in Overland Park, Kan. “In the past, ICE raided workplaces, arrested workers en masse and placed them in deportation proceedings.” Since April 2009, ICE’s stated priority has been the criminal prosecution of employers, she remarked.
“These days, ICE investigates the employer without the employer’s knowledge for months before serving a notice of I-9 inspection on the unsuspecting employer,” Mdivani said. “So while the decorum is much nicer, the consequences for the employer may be much more serious, including criminal and civil liability.” The focus has changed, Mdivani concluded, to prosecuting employers, not workers.
Some raids may continue where undocumented workers are present, according to Hector Chichoni, an attorney with Duane Morris in Miami. But Secretary of the Department of Homeland Security Janet Napolitano “has pledged over and over to increase the focus on criminal punishment for employer violators.” He added that under the Obama administration, possibly in association with other federal agencies such as the Labor Department and Internal Revenue Service, ICE inspections will continue and possibly increase.
“Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers,” Chichoni said. “The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area.”
There are many more I-9 audits in the Obama administration, according to Bonnie Gibson, an attorney with Fragomen, Del Rey, Bernsen & Loewy in Phoenix. “There were so few audits in the Bush administration that I don’t have any basis for comparison,” she remarked. “There is a new crop of audit staff, and ICE investigators and fines and pending notices of intent to fine are up dramatically.”
Agency Cooperation
Another change has been the increased cooperation among ICE and other government enforcement agencies. Gibson said ICE recently established a joint agency task force to gather information from multiple government sources and to target joint enforcement efforts.
Fusion centers have been established to facilitate cooperation among agencies, added Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. Wage and hour investigators, ICE auditors and tax auditors all are in one place at the fusion centers to share resources, leverage information and pursue top-to-bottom audits, she said. An employer in trouble tends to have violations that crisscross the workforce enforcement realm, so the government thinks it makes good sense to maximize its resources and have agents from different departments investigate together, Pivec said. What starts out as a wage and hour audit may become an ICE audit, as investigators have been cross-trained to recognize what might be violations of laws other than the ones they enforce, she commented.
Technical Violations
As for government audits of employers, Pivec said employers are being “nickeled and dimed with technical violations” of I-9s.
“In the past, an I-9 audit may have ended with a reprimand and a fine,” Mdivani added. “Now, it is ICE’s policy to use I-9 audits to lay the foundation for criminal prosecutions. When ICE is unable to do so, they still get their pounds of flesh.” She said that even in the case of a recent audit of Abercrombie & Fitch, where there wasn’t a single unauthorized worker, “ICE fined the employer $1 million for what essentially were paperwork I-9 violations. Under these circumstances, every employer is vulnerable.”
Allen Smith, J.D., is SHRM’s manager of workplace law content.
Related Articles:
Abercrombie & Fitch Fined More than $1 Million After I-9 Audit, SHRM Online Legal Issues, Oct. 4, 2010
Avoiding Immigration Audits, HR Magazine, January 2011
Edited for publication in this blog.
The Whitford Group
704 298-2115
I-9 Audits on the Rise in Obama Administration
By Allen Smith
1/11/2011
Immigration raids have decreased and the number of I-9 audits has risen dramatically in the first two years of the Obama administration, according to immigration attorneys.
“In the past two years, the Obama administration has significantly changed the direction of Immigration and Customs Enforcement’s worksite efforts,” Kevin Lashus, an attorney with Greenberg Traurig in Austin, Texas, told SHRM Online. “The Bush administration was interested in taking the highest numbers of unauthorized workers into custody during any time frame. The Obama administration, on the other hand, is interested in targeting the employers that hired them.”
Criminal Prosecutions
While Immigration and Customs Enforcement (ICE) in the Bush administration locked down buildings and herded workers into interrogations and ultimately onto planes for removal, the Obama ICE has increased administrative fines and paper audits—after which employers are asked to dismiss unauthorized workers, Lashus said. Criminal prosecutions of employers also have risen under the Obama administration, he added.
“Raids the way they used to be are not used by ICE anymore,” agreed Mira Mdivani, an attorney with The Mdivani Law Firm in Overland Park, Kan. “In the past, ICE raided workplaces, arrested workers en masse and placed them in deportation proceedings.” Since April 2009, ICE’s stated priority has been the criminal prosecution of employers, she remarked.
“These days, ICE investigates the employer without the employer’s knowledge for months before serving a notice of I-9 inspection on the unsuspecting employer,” Mdivani said. “So while the decorum is much nicer, the consequences for the employer may be much more serious, including criminal and civil liability.” The focus has changed, Mdivani concluded, to prosecuting employers, not workers.
Some raids may continue where undocumented workers are present, according to Hector Chichoni, an attorney with Duane Morris in Miami. But Secretary of the Department of Homeland Security Janet Napolitano “has pledged over and over to increase the focus on criminal punishment for employer violators.” He added that under the Obama administration, possibly in association with other federal agencies such as the Labor Department and Internal Revenue Service, ICE inspections will continue and possibly increase.
“Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers,” Chichoni said. “The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area.”
There are many more I-9 audits in the Obama administration, according to Bonnie Gibson, an attorney with Fragomen, Del Rey, Bernsen & Loewy in Phoenix. “There were so few audits in the Bush administration that I don’t have any basis for comparison,” she remarked. “There is a new crop of audit staff, and ICE investigators and fines and pending notices of intent to fine are up dramatically.”
Agency Cooperation
Another change has been the increased cooperation among ICE and other government enforcement agencies. Gibson said ICE recently established a joint agency task force to gather information from multiple government sources and to target joint enforcement efforts.
Fusion centers have been established to facilitate cooperation among agencies, added Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. Wage and hour investigators, ICE auditors and tax auditors all are in one place at the fusion centers to share resources, leverage information and pursue top-to-bottom audits, she said. An employer in trouble tends to have violations that crisscross the workforce enforcement realm, so the government thinks it makes good sense to maximize its resources and have agents from different departments investigate together, Pivec said. What starts out as a wage and hour audit may become an ICE audit, as investigators have been cross-trained to recognize what might be violations of laws other than the ones they enforce, she commented.
Technical Violations
As for government audits of employers, Pivec said employers are being “nickeled and dimed with technical violations” of I-9s.
“In the past, an I-9 audit may have ended with a reprimand and a fine,” Mdivani added. “Now, it is ICE’s policy to use I-9 audits to lay the foundation for criminal prosecutions. When ICE is unable to do so, they still get their pounds of flesh.” She said that even in the case of a recent audit of Abercrombie & Fitch, where there wasn’t a single unauthorized worker, “ICE fined the employer $1 million for what essentially were paperwork I-9 violations. Under these circumstances, every employer is vulnerable.”
Allen Smith, J.D., is SHRM’s manager of workplace law content.
Related Articles:
Abercrombie & Fitch Fined More than $1 Million After I-9 Audit, SHRM Online Legal Issues, Oct. 4, 2010
Avoiding Immigration Audits, HR Magazine, January 2011
Edited for publication in this blog.
The Whitford Group
704 298-2115
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