Janette S Levey - The Employer's Lawyer’s Post

Employers, repeat after me: clamping down on a man reporting discrimination against women is *also* illegal. You might be thinking, "Thank you, Captain Obvious". It *should* be, but, allegedly it isn't so obvious to Meta. Jeffrey Smith is a Research Engineering Manager at Meta since 2018 (having joined with 10 years' prior experience). Up until last year, he received outstanding reviews. In particular his direct reports had only positive feedback for him as a manager. After a reorganization, things changed. He noticed that women that he had supervised, who had performed well in their jobs suddenly were being stripped of authority, excluded from meetings and advancement opportunities in favor of less qualified men, criticized more harshly than male counterparts among other things. He protested to his superiors and colleagues and challenged the evolving lack of diversity. Well, apparently h3ll hath no fury like a "leadership team" scorned. For the first time in his tenure he received a negative annual performance review that was delayed by several months, that did not include anonymous feedback from direct reports as was the usual procedure, but only from one executive who did not like his protesting in good faith about the treatment of women. First he was told to seek another internal position, although it was known that the negative review would have made him ineligible. In April he was asked to resign. Instead Smith sued, alleging retaliation and interference under NYS and NYC Human Rights Laws. He has also filed an EEOC charge and will add a Title VII claim if/when he exhausts his federal administrative remedies. He's also looking for punitive damages. If he can prove the allegations (and if Meta can't come up with legitimate nondiscriminatory reasons for its alleged actions) he just might get them -- or least a respectable settlement. In addition to the obvious point about not retaliating against someone who challenges their employer on EEO issues, there is, IMHO another big-picture issue, and so, doing what I do, I will now zoom out an "speak" to new management, acquiring companies and the like. It's natural to want to make changes when you reorganize, when you bring in new managers, when you acquire a company. That said, get the "lay of the land" before you do so. How about getting to know the company and the team that is already in place? If the employees have been doing well, if as a result, the company has been doing well, is that really the place to make your mark? Will you make that mark even if doing so or the way you do it is illegal? What will you put first, the well-being of the company and its employees (and customers/clients), or your own ego (whether individual or collective)? Yes, you have the right to put your ego(s) first. You also have the right to live with the consequences of doing so. Thoughts? Share below. #employmentlaw, #discrimination, #retaliation, #employers, #hr, #leadership

Employers, repeat after me: you can be liable for discrimination even if you don't "intend" it. Wait. What? If your practices adversely impact a disproportionate number of people in 1 or more classes protected under anti-discrimination (and affirmative action) laws, then that is discrimination and you can be liable. This is known as disparate impact. Deere & Co (aka John Deere) will pay $1.1m to settle allegations by the Office of Federal Contract Compliance Programs (OFCCP) that it discriminated by way of hiring disparities in its Milan, IL and Arkeny and Waterloo, IA facilities as found in routine Compliance Evaluations (audits) from 2021 and 2022. Specifically, the damages represent back wages and interest to be paid to 277 Black and Hispanic applicants rejected for warehouse, assembly and production positions during the aforementioned years. It will also make 53 job offers to eligible class members and review its personnel practices, including recordkeeping and internal auditing procedures. The USDOL (of which the OFCCP is a part) says that the settlement is the largest of its kind this year. The OFCCP found statistically significant differences in hiring rates for Black and Hispanic applicants in these 3 sites, and the settlement is intended to address those disparities. John Deere is by no means unique. 2 other federal contractors, Caterpillar and agreed to pay $800k in May to settle race discrimination allegations and GE Aerospace agreed to pay $443k to settle similar sex discrimination allegations. If you're a federal contractor or sub-contractor you have an extra layer of eeo type requirements with which you must comply. Proactively ensuring that your hiring practices include at least good faith efforts to have your actual workforce reflect the available workforce rather than winging it and reacting when you are audited is, IMHO, a much better strategy. An internal checkup and reaching out to friendly local employment counsel BEFORE you are sued, or audited or an employee otherwise complains goes a long way to avoid being the next John Deere. It also allows you to devote more time and resources to running your business and making more money. That *is* why your company went into business in the first place, isn't it? Thoughts? Share below. #discrimination, #employers, #employmentlaw, #affirmativeaction, #hr, #disparateimpact, #hiring

Employers, repeat after me: using a Performance Improvement Plan (PIP) to fire an employee complaining of discrimination can be enough to support a lawsuit. At least initially. Keesha Anderson sued Amazon Music for race discrimination, under NYS and NYC Human Rights Law, and 42 USC Sec 1981. Anderson complained that mistreatment by her supervisor was racially motivated. Allegedly she was then moved to a different team, her budget was significantly reduced, she was excluded from meetings, the transfer either took away actual supervisory functions or at least the potential for advancement, and finally she was put on a PIP. She resigned when she allegedly learned from a co-worker that Amazon Music sought to push her out due to her complaints. Evidence and allegations have not yet been so fleshed out, as the case is only at the stage of a pre-discovery motion to dismiss. Amazon moved to dismiss arguing that Sec 1981 requires a materially adverse employment action and, citing case precedent, that a PIP falls far short of that standard. Amazon seemed to have a solid argument. But in April the US Supreme Court ruled in Muldrow v City of St. Louis that a plaintiff need only show that employment action need only cause "some harm", rather than significant harm. Wait a minute. Muldrow was a Title VII case, not a Section 1981 case (which basically says that everyone in the US, regardless of color/race) can make and enforce contracts). The US Dist Judge for the Southern District of NY held that nothing in Section 1981 suggested that the same reasoning doesn't apply there as well. So, in light of Muldrow, he ruled that Anderson alleged sufficient facts to withstand a motion to dismiss (although he admit to being "skeptical" that she could prove that Amazon Music's actions were racially motivated.) This ruling got me thinking (in case you smelled smoke). A not-small number of employers often do PIPs when the company's relationship with the employee has broken down and the employer has effectively made up its mind that it wants to fire the employee. The PIP often reflects that, setting goals and a timeline that it's clear the employee cannot or is unlikely to be able to meet. Often there isn't any other documentation prior to the PIP showing any performance or conduct issues. Used in that way, PIPs are not likely to protect against discrimination or other wrongful termination claims. PIP's shouldn't come as a surprise. Used correctly, they should be a tool to support employees, to help them actually improve, rather than a means to retroactively document or support a predetermined decision to terminate an employee. Termination is supposed to be a last resort, not a go-to response. If after, ongoing concerted efforts to ensure an employee's success, there is no improvement, the PIP is much more likely offer legal protection. Share your thoughts below. #employmentlaw, #discrimination, #retaliation, #adverseemploymentaction, #employers, #hr

Employers, repeat after me: Words in job postings can get you sued. Raytheon Technologies Corp a major aerospace and defense company with almost 200k employees is facing a class action age discrimination lawsuit over its job postings and its hiring practices. Raytheon's ads allegedly specify they want "recent graduates", in some cases going as far as stating that those who aren't recent graduates (or current college seniors) to "please visit our other opportunities". Some of the ads even specify *how* recent the graduates should be (i.e. within 12-24 months), and some allegedly specify that candidates shouldn't have more than a certain amount of experience. The ads support the claims that Raytheon discourages "older" applicants (i.e. 40 y.o. and above) from applying, and refuses to hire those who do. The lead plaintiff, Mark Goldstein, 67 y.o., has applied for and not been hired (and at least in some cases not even interviewed) for any of the positions he applied for and alleges he was qualified for every position. The lawsuit includes claims under the ADEA and MA and VA state laws. (Raytheon's HQs were in MA up until about 2022 and moved to VA, hence the state claims.) Mr. Goldstein filed an EEOC charge in 2019 and the EEOC even stated in its Final Determination Letter that: a) Raytheon's ads violated the ADEA and b) its investigation determined that Mr. Goldstein was rejected, not based on qualification but on age. Not only did Raytheon not enter into a settlement at that time, but it has allegedly continued these practices. But here's the kicker: In its SEC filings since 2020, Raytheon has reported a labor shortage. Yes, these are only allegations, and no, the EEOC doesn't always get it right. That said, it's not looking good for Raytheon. So I also want to thank Raytheon for possibly validating a point I have made many times here: If you discriminate, if you don't comply with minimal legal obligations toward your employees (or candidates) or otherwise fail to even be decent, that failure will ultimately impede your ability to attract and retain good employees. If the allegations are true, Raytheon was warned at least three years ago that its recruiting and hiring practices run afoul of the ADEA (and state laws) and apparently chose to do nothing about it. I don't know about you, but I can't feel bad for Raytheon's "labor shortage" if that's the case... Share your thoughts below. #employmentlaw, #ADEA, #agediscrimination, #hr, #employers, #recruiting

Score one for Starbucks -- at least for now. The US Supreme Court agreed with Starbucks as to what standard applies for granting a preliminary injunction. That standard is more stringent than that applied by the US District Court and the 6th Circuit. It's also the traditional standard. (This is the Memphis 7 case, where Starbucks fired 7 workers involved in union activity.) That was the only issue before the court. Upon making that determination SCOTUS remanded the matter to the district court to decide the issue using the more stringent standard. But here, IMHO, is the key question: How much if any impact will/does it have here, or going forward? Let's explore: The NLRB will now have to clearly show that it a) is likely to succeed on the merits; b) is likely to suffer irreparable harm without the preliminary injunction; c) the balance of equities tip in its favor; d) an injunction is in the public interest. Admittedly the NLRB must clear a higher bar. Could the NLRB have cleared that bar back in 2022? Depending on who's deciding the case, yes. What about now though? Does that matter as much now? If so, how much? Let's zoom out from this immediate case and the specific legalities and look at the bigger picture. In February, Starbucks and Starbucks Workers United reportedly announced that they would restart talks aimed at reaching a contract agreement this year, and had its first bargaining session in late April. At least 5 of the 7 workers are still employed at Starbucks. The other 2, though no longer working at Starbucks, are still involved in unionization efforts With respect to this case the workers seem to have made significant gains, regardless of whether the NLRB and the union succeed on the remand. But what about going forward? Frankly, while NLRB (and the union) AND Starbucks will have to be more careful in setting up their cases (because there are and *will* be more of these cases) the union and the NLRB have shown that they will push back hard against Starbucks if it continues acting in ways that appear to support retaliation and unfair labor practice claims. Employers and employees nationwide are watching and may be taking their cues accordingly. So yes, procedurally, technically, legally SCOTUS's ruling on this one specific issue is a "win" for Starbucks. Whether it is in the big picture is, IMHO, not so clear as of now. The takeaway for the rest of us: If you are thinking of disciplining or terminating any employees involved in union activity, make sure you can prove that your actions are founded on solid unrelated reasons -- and speak with friendly labor/employment counsel first. Better yet: Be proactive, establishing fair relations and open communication with your employees and seek to prevent the issues that lead to unionization in the first place. Your thoughts? Share below. #laborlaw, #employmentlaw, #unions, #nlrb, #employers, #hr, #starbucks

I couldn't make this up if I tried... General Mills is facing a race discrimination lawsuit -- with significant twists. Allegations (50 pages worth) include, not just intentional discrimination against black employees, but premeditated, concerted efforts. Allegedly 2 higher-ups formed a group of white men that they called the "Good Ol' Boys", only allowing "like-minded" individuals that "toe the line" into leadership positions. Among some of the many other allegations: 1. GM doesn't uniformly require white employees to comply with policies, job descriptions or advancement standards, but stringently applies them to black employees, and even puts them in situations that set them up for write-ups (e.g., placing black employees in work areas where they're not trained , "as a favor" and then writing them up for violating policy, either by being in that area or for not following the procedures required in that area.) 2. False evaluations for white employees based on "inflated information", and whitewashing negative information, then using those evaluations to promote those employees, while using false information to demote black employees. 3. Strict quotas for desirable job positions for black employees, while reserving those positions for white employees. IMHO here are the 2 kickers: 1. Using its brand mascots in a mural and depicting them as generals for the confederacy (a reference to a confederate Memorial in a nearby park), displaying the mural at its facility from 2005-2021. 2. Leadership using "members and friends in HR positions — supported by the legal team of a multi-billion-dollar company — to adopt policies and take actions that allow [them] to treat [White] employees more favorably than Black employees in a way that reduces the risk of liability findings in discrimination cases and reduces the risk of paying unemployment benefits.” With 50 pages of allegations it seems at least some of them will stick. GM thus far has given the usual "we don't tolerate discrimination" response and apparently has argued that whatever disparities do exist aren't "statistically significant". (Not sure I'd lead with that, but OK.) But here's another crucial difference in this case: The plaintiffs didn't sue under Title VII. They sued under Section 1981 of the Civil Rights Act of 1866 (provides equal rights to people of all races to make and enforce contracts, can be used by employees.) and federal and state RICO statutes. Why is this important? First the EEOC doesn't enforce these laws, so employees need not file a charge before suing. There's also no minimum number of employees for this law to apply. But here's the real zinger: No cap on damages. (Did I mention this is a class action lawsuit -- i.e., multiple plaintiffs?) Was this lawsuit avoidable? I'd think so. Think this twist won't catch on? Think again. Or take the risk. Your call. Thoughts? #employmentlaw, #employers, #hr, #civilrights, #discrimination #toxicworkplace

Employers, repeat after me: Firing an employee on FMLA leave to care for a gravely ill family member without a legitimate unrelated reason is asking for a lawsuit. Ballard Spahr now faces an FMLA leave interference and retaliation and ADA associational disability discrimination suit by former Legal Assistant, Dori Gardiner. (Yes, the ADA prohibits discrimination based on an employee's association with a disabled person.) Gardiner worked as a Legal Assistant at Ballard Spahr, supporting several partners and one senior associate from Oct 2020 until her termination on or about Sept 28, 2022. Her husband, diagnosed with metastatic prostate cancer on January 30, 2002 began radiation, chemo and hormone therapy . Staff began hybrid work arrangements on or about Feb 28. Allegedly: Ms. Gardiner disclosed her husband's condition to her employer on March 1 and requested to continue working remotely during her husband's treatment. Her request was granted. On March 25, 2022, she submitted paperwork for intermittent FMLA leave, which Ballard Spahr approved. She returned to in-person work on May 2, 2022. She also used occasional PTO (with permission) to take her husband to dr appointments. On July 11, Ms. Gardiner after a favorable performance review she got a 7.5% raise. On Sept 16, a PET scan revealed that her husband's cancer had spread throughout his body. She told her superiors. On Sept 27 they called her into a meeting and told her they wanted to fire her "immediately" for making too many mistakes and taking too much time off due to her husband's illness. She asked to be transferred to another position. The next day she was told "No" and they terminated her. She was still on approved intermittent FMLA leave. (9 months later her husband died.) The timing alone doesn't bode well for Ballard Spahr. Two months after a favorable performance review with a nice raise, she is suddenly "making too many mistakes" without any prior discussion, no chance to improve (if she *was* making mistakes) and no support from any supervisor? Termination is not supposed to be the go-to response -- especially for an employee on a legally protected leave. The goal is supposed to be retention -- especially if all evidence indicates favorable performance. Add to that: performance issues, if any, would appear to have coincided with the stress of a husband with a catastrophic illness. Yes, I advise employers to document performance issues. I also advise employers make good faith attempts to work with employees who may have extenuating circumstances causing temporary drops in their performance. I also advise employers about their obligations under FMLA and ADA. But if you treat an employee with a gravely ill loved one the way this one allegedly did, do you really have a right to expect employee engagement and loyalty? Can you really be surprised when you're sued? Thoughts? Share below. #employmentlaw, #fmla, #employers, #hr, #disabilitydiscrimination

If you missed the previous showings of this webinar in April, here's the last chance to catch this free webinar, on The New(?) Independent Contractor Rule on June 6 @ 11:00 AM EST. NOTE: Accepting the Invitation (while appreciated :-) doesn't register you for the event. Please (with sugar on top) use the Zoom link in the event to register so you can join seamlessly on June 6. Join me and stay up-to-date on the latest independent contractor rule updates, and don't miss the chance to expand your knowledge on the following topics: - The evolution of current and previous independent contractor rules - The likely scope, impact, and challenges of the "new" rule - What you can and should do to remain compliant - How the changes may affect your payroll and benefits cost Stay ahead of the game and register now! #webinar #independentcontractor #updates

Knew it, knew it knew it! The DOL is now officially facing a legal challenge to its new overtime rules. As soon as I saw the Final Rule, I thought, "Here we go again". Why? This rule not only bears striking similarity to the Obama rules that a judge struck down in 2017, but IMHO it goes even further. The Obama rules included a significant jump in the minimum salary amount for 4 exemption categories (executive, administrative, professional and highly compensated employee) as well as automatic increases every three years. The automatic increases were the main reason for the Obama rules' downfall. Why? Because of those boring pesky rulemaking requirements under the Administrative Procedure Act (Please don't nod off yet, I'll make this painless.) Basically changes to rules (and increases *would* be changes) can only occur after the deparment in question (in this case the DOL) publishes a proposed rule, allowing an adequate public comment period. ANYONE can submit comments. The agency then reviews the comments, tweaks the rules and then publishes a final rule, with a date for it to take effect. The Obama rules -- and now the Biden rules basically ignore those inconvenient requirements, supporting a claim that the DOL again exceeded its authority. But the Biden DOL went further. Its rules include a significant salary minimum jump both in July, 2024 and then January 2025, more than doubling the minimum salary for the aforementioned 4 exemption categories. The challengers are arguing that such a jump effectively renders these exemptions meaningless, which effectively violates the FLSA. There's more, but it's Friday before a holiday weekend, and I'm not interested in inflicting any more pain than necessary, so I'll reserve the right to return to talk more about it (whether in a post or some other way). So stay tuned. I know I am. Now, this does not mean you should not worry about whether you've properly classified your employees as overtime-exempt. You should still care. You should still make sure to get it right. Because if you don't you could end up owing 2-3 years of overtime pay under the FLSA (more under applicable state wage and hour laws) and attorney fees for all plaintiffs and your company's own legal fees. That and you'll have a new best friend known as the DOL (2 if a state DOL is also involved). I don't know about you, but I prefer to choose my best friends, but you do you... Thoughts? Share below. Otherwise enjoy your long weekend. #employmentlaw, #wageandhour, #overtime, #employers, #businessowners, #hr