Is your business advertising for job positions? Make sure the ads themselves are not discriminatory.
The Equal Employment Opportunity Commission (EEOC) reports that restaurant chain Ruby Tuesday, Inc. — which placed ads seeking only female employees — will pay $100,000 and implement preventative measures to settle a sex discrimination lawsuit brought by the EEOC.
The federal agency charged that Ruby Tuesday denied two male employees the opportunity to work as servers in the busy resort town of Park City, Utah in the summer of 2013. According to the EEOC’s suit, Ruby Tuesday posted an internal announcement within a nine-state region for temporary summer positions with company-provided housing and the chance for greater earnings (Oregon, Arizona, Colorado, Iowa, Minnesota, Missouri, Nebraska, Nevada, and Utah). However, the announcement stated that only females would be considered, purportedly because of concerns about housing employees of both genders together. Ruby Tuesday only selected women for those summer jobs, therefore blocking two male employees from transferring to the resort.
GENDER DISCRIMINATION INCLUDES DISCRIMINATION AGAINST MEN
Title VII of the Civil Rights Act of 1964 prohibits employers from giving more advantageous terms and conditions of employment to one group of individuals based on gender. The vast majority of cases involve alleged discrimination against women. However, men are equally protected from discrimination under Title VII — a fact about which Ruby Tuesday is now painfully aware.
Under the consent decree resolving the EEOC’s lawsuit, Ruby Tuesday will pay employees Andrew Herrera and Joshua Bell a total of $100,000 and take steps to prevent future sex discrimination. The company will provide training to all of its managers and employees on Title VII and job assignments in the nine-state area covered by the EEOC’s lawsuit for the duration of the three-year decree. This includes an estimated 1,600 managers and employees at 49 different locations. Ruby Tuesday will also report its training efforts to the EEOC, and post reminders of this resolution on its website and at its restaurants.
“Ruby Tuesday will take affirmative steps to make sure its managers do not make gender-based employment decisions again, even if it only involves temporary summer assignments,” said EEOC San Francisco Regional Attorney William R. Tamayo. “All managers and employees should know that making personnel decisions based on an employee’s sex is rarely permitted under federal law.”
Seattle Field Office Director Nancy Sienko explained, “We hope that all employees of Ruby Tuesday will have the chance to work in Park City should the company have that need again, and that the company explores other ways to address genuine privacy concerns of temporary workers when it provides housing.”
ROLLING STONES TRIVIA
HR Law Insider hopes everyone enjoyed a restful Memorial Day weekend and honored our veterans. As we all work back into the abbreviated workweek, here is a bit of “Stones” trivia regarding a song must of us know well:
According to Keith Richards’s autobiography, Life, Rolling Stones hit Ruby Tuesday was written about his girlfriend Linda Keith. Linda had taken up with Jimi Hendrix, and had got involved with drugs. She left Richards, and he tried to get her back. He eventually went to her parents and told them she was going down a dark path. Linda’s father went to New York to collect her, and by order of court she was grounded. Richards reports that Linda regarded this as a betrayal, and they did not speak again for many years.
Here is a solid rendition of Ruby Tuesday by the Stones — enjoy and have a great week:
The suspect accused of murdering four people in Washington, D.C. is an ex-employee of the company owned by the primary victims’ family. The cold-blooded murder is not only remarkable for its cruelty, but also because of the suspect, Daron Dylon Wint’s, extensive criminal record.
HR Law Insider does not know whether a background check was conducted on Wint before he was hired as a welder at American Iron Works, owned by victim Savvas Savopoulos. Nor is it known how many crimes Wint had committed before he was hired. What is known is that over the years Wint has developed a long criminal record, including assault, theft, malicious destruction of property, among other crimes.
WINT KNEW HIS PRIMARY VICTIM THROUGH WORK
Authorities agree that the murders were not random: “We do believe there is a connection between this suspect in this case through the business,” Metropolitan Police Chief Cathy L. Lanier said Thursday.
(Savvas Savopoulos and his wife Amy)
THE IMPORTANCE OF BACKGROUND CHECKS
In the United States, the proportion of murder victims who knew their assailants to victims killed by strangers is about 3-to-1. Workplace violence is no different: crimes are committed by employees who know other employees and know the owners of the businesses.
Thus, employers should not “invite” employees into their workplaces if they have no real idea who they are hiring. One can never truly know a job candidate based on several interviews and a flowery resume. However, businesses can close the knowledge gap by taking the simple step of having a professional service conduct a background check.
FOLLOW THESE SIMPLE RULES FOR BACKGROUND CHECKS
The first step for an employer to take regarding a background check is to obtain signed authorizations from its job applicants and employees. Employers should consult with legal counsel to obtain an authorization that complies with the law.
If the employer then relies on negative information obtained via the background check to deny a job application, reassign or terminate an employee, deny a promotion, or take other adverse action, the Fair Credit Reporting Act (FCRA) requires the following steps:
Step 1: Before an employer takes the adverse action, it must give the individual a pre-adverse action disclosure that includes a copy of the individual’s consumer report and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” — a document prescribed by the Federal Trade Commission. The CRA that furnishes the individual’s report will give you the summary of consumer rights.
Step 2: After the employer has taken an adverse action, it must give the individual notice that the action has been taken in an adverse action notice. It must include:
The name, address, and phone number of the CRA that supplied the report;
a statement that the CRA that supplied the report did not make the decision to take the adverse action and cannot give specific reasons for it; and
a notice of the individual’s right to dispute the accuracy or completeness of any information the agency furnished, and his or her right to an additional free consumer report from the agency upon request within 60 days.
(Source: Federal Trade Commission; 15 U.S.C. § 1681 et seq.)
Obtaining background checks can be an effective way for employers to weed out dangerous and/or undesirable employees. Weeding out such employees can save substantial amounts of time and money for employers and also decrease the risk of employee violence, theft and dishonesty. In your efforts to ensure that you hire the most qualified employees with the best backgrounds, comply with the FCRA. If you do not follow the law the consequences can be severe — the FCRA allows individuals to sue offending employers for damages in federal court.
One other note: the EEOC takes the position that “[t]he fact that an individual was arrested is not proof that he engaged in criminal conduct. Therefore, an individual’s arrest record standing alone may not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee). However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.
In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.”
HR Law Insider will provide an in-depth discussion regarding the issue of arrests versus convictions in a follow-up piece.
According to the EEOC, coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions is “an enforcement priority.” This enforcement priority is “consistent with positions the EEOC has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII’s prohibition on sex discrimination.”
True to its word, the EEOC is vigorously pursuing employers on a number of such cases. In turn, the number of charges of discrimination and lawsuits regarding sexual orientation and identity is rapidly escalating.
This HR Law Insider edition helps employers understand and comply with emerging gender issues. The two transgender cases discussed below — one involving a funeral home embalmer and the other a fireman, with each employee transitioning from male to female — provide an excellent guide for employers as to how to treat (or not to treat) transitioning employees or other employees with gender issues.
THE EEOC SUES ON BEHALF OF A TRANSGENDER EMBALMER AND WINS ROUND ONE IN COURT
The EEOC recently sued a funeral home on behalf of its embalmer asserting that the funeral home’s decision to fire the employee was motivated by sex-based considerations, in that the funeral home fired the employee because she is transgender, because of her transition from male to female, and because she did not conform to the defendant employer’s sex- or gender-based preferences, expectations, or stereotypes. The EEOC also asserted that the funeral home engaged in an unlawful employment practice in violation of Title VII by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex.
Last month, a federal court decided that the case could go forward despite the funeral home’s argument that transgender status is not protected under Title VII: “Even though transgender/transsexual status is currently not a protected class under Title VII, Title VII nevertheless “protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.”
A TRANSITIONING FIREMAN IS ALSO PROTECTED UNDER TITLE VII
The decision in the embalmer case relied heavily on a 2004 lawsuit involving a transgender fireman. In Smith v. City of Salem, plaintiff Jimmie Smith was born a male and had been employed by the Salem Fire Department for seven years without any negative incidents. After being diagnosed with Gender Identity Disorder, Smith began expressing a more feminine appearance on a full-time basis, including while at work. Smith’s co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.” Smith then advised his supervisor about his Gender Identity Disorder diagnosis and informed him that his treatment would eventually include “complete physical transformation from male to female.”
The news was not well-received by Smith’s employer. Smith’s superiors met to devise a plan to terminate Smith, which included requiring him to undergo three separate psychological evaluations in the hope that he would quit.
Smith lost before the lower court, but a federal court of appeals reversed and ruled in his favor:
“His complaint sets forth the conduct and mannerisms which, he alleges, did not conform with his employers’ and co-workers’ sex stereotypes of how a man should look and behave. Smith’s complaint states that, after being diagnosed with GID, he began to express a more feminine appearance and manner on a regular basis, including at work. The complaint states that his co-workers began commenting on his appearance and mannerisms as not being masculine enough; and that his supervisors at the Fire Department and other municipal agents knew about this allegedly unmasculine conduct and appearance. The complaint then describes a high-level meeting among Smith’s supervisors and other municipal officials regarding his employment. Defendants allegedly schemed to compel Smith’s resignation by forcing him to undergo multiple psychological evaluations of his gender non-conforming behavior.
The complaint makes clear that these meetings took place soon after Smith assumed a more feminine appearance and manner and after his conversation about this with Eastek. In addition, the complaint alleges that Smith was suspended for twenty-four hours for allegedly violating an unenacted municipal policy, and that the suspension was ordered in retaliation for his pursuing legal remedies after he had been informed about Defendants’ plan to intimidate him into resigning. In short, Smith claims that the discrimination he experienced was based on his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.”
The Smith court explained that “[h]aving alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.”
Whether in the macho world of firemen or the macabre world of embalmers, businesses must comply with Title VII. This includes treating transgender and similar employees in a non-discriminatory manner. Failure to do so may give rise to an EEOC lawsuit; expect such lawsuits to accelerate and be pursued intensely by an EEOC, who has made the pursuit of such cases a “priority.”
It is difficult for many non-transgender people to understand how transgender individuals think and what they are going through. For a brief glimpse of one person’s journey and perspective, here is a portion of Diane Sawyer’s interview of Bruce Jenner:
HR Law Insider’s last edition discussed — using the wacky world of the NFL as an example — workplace investigations. Businesses should anticipate that their workplace investigations, or lack thereof, may be scrutinized by the EEOC, a judge, or a jury. A good investigation is an effective shield against employment claims; a bad one is a sword for plaintiffs’ lawyers.
EEOC GUIDELINES FOR WORKPLACE INVESTIGATIONS
The EEOC has published guidelines which include many of the elements of an effective investigation:
Effective Investigative Process
An employer should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment. As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. For example, if the alleged harasser does not deny the accusation, there would be no need to interview witnesses, and the employer could immediately determine appropriate corrective action.
If a fact-finding investigation is necessary, it should be launched immediately. The amount of time that it will take to complete the investigation will depend on the particular circumstances. If, for example, multiple individuals were allegedly harassed, then it will take longer to interview the parties and witnesses.
It may be necessary to undertake intermediate measures before completing the investigation to ensure that further harassment does not occur. Examples of such measures are making scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. The complainant should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.
The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.
Questions to Ask Parties and Witnesses
When detailed fact-finding is necessary, the investigator should interview the complainant, the alleged harasser, and third parties who could reasonably be expected to have relevant information. Information relating to the personal lives of the parties outside the workplace would be relevant only in unusual circumstances. When interviewing the parties and witnesses, the investigator should refrain from offering his or her opinion.
The following are examples of questions that may be appropriate to ask the parties and potential witnesses. Any actual investigation must be tailored to the particular facts.
Questions to Ask the Complainant:
Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
How did you react? What response did you make when the incident(s) occurred or afterwards?
How did the harassment affect you? Has your job been affected in any way?
Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
Are there any notes, physical evidence, or other documentation regarding the incident(s)?
How would you like to see the situation resolved?
Do you know of any other relevant information?
Questions to Ask the Alleged Harasser:
What is your response to the allegations?
If the harasser claims that the allegations are false, ask why the complainant might lie.
Are there any persons who have relevant information?
Are there any notes, physical evidence, or other documentation regarding the incident(s)?
Do you know of any other relevant information?
Questions to Ask Third Parties:
What did you see or hear? When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
What did the complainant tell you? When did s/he tell you this?
Do you know of any other relevant information?
Are there other persons who have relevant information?
If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:
Inherent plausibility: Is the testimony believable on its face? Does it make sense?
Demeanor: Did the person seem to be telling the truth or lying?
Motive to falsify: Did the person have a reason to lie?
Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
Past record: Did the alleged harasser have a history of similar behavior in the past?
None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.
Reaching a Determination
Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred. That determination could be made by the investigator, or by a management official who reviews the investigator’s report. The parties should be informed of the determination.
In some circumstances, it may be difficult for management to reach a determination because of direct contradictions between the parties and a lack of documentary or eye-witness corroboration. In such cases, a credibility assessment may form the basis for a determination, based on factors such as those set forth above.
If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventive measures, such as training and monitoring.
The EEOC guidelines provide employers with an excellent understanding of how the EEOC “thinks,” how it will scrutinize employers’ investigations, and how it will decide cases.
The EEOC’s guidelines, however, are just that: guidelines. These particular guidelines involve a hypothetical complaint of sexual harassment. No two situations — or complaints — are alike. Thus, each investigation should be planned and conducted based on the unique facts that are presented.
Companies should consult counsel when launching an investigation, making difficult decisions during the investigation, and when a final conclusion is about to be reached.
For how NOT to conduct an investigation, enjoy Inspector Clouseau in action:
The NFL vs. Tom Brady saga is the gift that keeps on giving. Yesterday, the New England Patriots released a statement called “The Wells Report in Context.” It should be named “An Attack on the Wells Report and Why We Hate the NFL” because it goes after Wells’ conclusions — which conclusions the NFL adopted — in a multitude of ways.
The Patriots statement attacking the Wells report is often as amusing as it is long. One example: According to the Patriots, ball boy Jim McNally didn’t call himself “The Deflator” because he took air out of footballs at the behest of Tom Brady; he called himself that because he’s overweight and trying to lose a few pounds. Many doubt the Patriots spin on the self-styled “deflator.”
ANY ORGANIZATION THAT CONDUCTS AN INVESTIGATION SHOULD EXPECT THAT IT WILL BE SCRUTINIZED
When any business conducts a workplace or other investigation, that investigation may later be challenged in an EEOC proceeding, lawsuit, or arbitration. It is thus critical to get the investigation right — to make it unassailable.
But investigations often involve difficult credibility calls, memory foibles, and ambiguous evidence. What if a company’s “heart” is in the right place — it means well — but it is later proved that it came to the wrong conclusion?
EMPLOYERS ARE HELD TO A GOOD FAITH STANDARD, NOT ONE OF PERFECTION
If a company terminates or disciplines an employee based on a good faith, reasonable belief that an employee engaged in misconduct, but is later shown to be mistaken, the company will likely not be found liable for discrimination.
For example, in Cervantez v. KMGP Services Co. a company fired an employee after it discovered that his computer User ID and password had been used to access pornographic Web sites from one of the company’s shared computers in the break room. The company conducted an investigation and determined that the plaintiff had been at work on the dates that his User ID was used to access hundreds of these sites. When the employee was told that he was being fired, he denied having visited any such Web sites, and then sued the employer, alleging that he was fired because of his age in violation of the Age Discrimination in Employment Act.
After he was fired, the employee obtained a copy of the log of Web sites he allegedly visited with his User ID. He admitted that the log showed attempts to access prohibited sites on dates that he was at work, but he also identified attempts made on dates that he did not work or at times long after his shift had ended.
A federal court found that the employer’s reason for discharging the employee – violation of its computer use policy – was a legitimate, nondiscriminatory reason, and that the apparent inconsistencies in the log detailing the Web sites the plaintiff allegedly accessed did not demonstrate that the employer’s reasons for firing him were pretextual. The Court ruled that “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.”
THE SAME “GOOD FAITH” STANDARD APPLIES TO EMPLOYEE COMPLAINTS
An employee is protected against retaliation for opposing perceived
discrimination if the employee had a reasonable and good faith belief that the opposed practices were unlawful. Thus, employer retaliation can be found whether or not the challenged practice ultimately is found to be unlawful.
As one court has stated, requiring a finding of actual illegality would “undermine Title VII’s central purpose, the elimination of employment discrimination by informal means; destroy one of the chief means of achieving that purpose, the frank and non-disruptive exchange of ideas between employers and employees; and serve no redeeming statutory or policy purposes of its own.”
Here are two examples applying the “good faith” standard:
Example 1 – Employee complains to her office manager that her
supervisor failed to promote her because of her gender.
(She believes that sex discrimination occurred because she
was qualified for the promotion and the supervisor promoted
a male instead.) Employee has engaged in protected opposition
regardless of whether the promotion decision was in fact
discriminatory because she had a reasonable and good faith
belief that discrimination occurred.
Example 2 – Same as above, except the job sought by Employee was
in accounting and required a CPA license, which Employee lacked
and the selectee had. Employee knew that it was necessary to have
a CPA license to perform this job. Employee has not engaged in
protected opposition because she did not have a reasonable
and good faith belief that she was rejected because of sex
TAKEAWAY FOR EMPLOYERS
Perfection is not of this world. Courts and judges recognize this fact. Thus, if an employer terminates or disciplines an employee based on a good faith, reasonable belief of misconduct, in most cases the employer will obtain a defense verdict even if it is determined the employer was mistaken.
The key, therefore, is for employers to be able to prove that they had a good faith, reasonable belief when they disciplined or terminated the employee. This is primarily accomplished by conducting a prompt and thorough investigation when misconduct comes to light, and by maintaining a solid documentary record of the investigation and evidence proving the misconduct.
HR Law Insider’s next article will drill down on what constitutes a good investigation versus a bad investigation — providing employers the tools to make good faith decisions that will withstand EEOC, court, and public scrutiny.
Until then, the football follies are sure to continue, providing more fodder for comics, who are having a field day:
This afternoon the NFL gave New England Patriots quarterback Tom Brady a four-game suspension for his role in the team’s illegal deflation of footballs. The league also fined New England $1 million and took away two draft picks, including a first-round choice in 2016, citing “conduct detrimental to the integrity of the N.F.L.”
THE NFL STATEMENT READS LIKE AN EMPLOYEE DISCIPLINE REPORT
The NFL’s statement reflects a methodology (1) employers use to determine employee discipline and (2) governing agencies use to sanction businesses:
“It is impossible to determine whether this [ball deflation] activity had an effect on the outcome of games or what that effect was. There seems little question that the outcome of the AFC Championship Game was not affected. But this has never been a significant factor in assessing discipline. There are many factors which affect the outcome of a game. It is an inherently speculative exercise to try to assign specific weight to any one factor. The key consideration in any case like this is that the playing rules exist for a reason, and all clubs are entitled to expect that the playing rules will be followed by participating teams. Violations that diminish the league’s reputation for integrity and fair play cannot be excused simply because the precise impact on the final score cannot be determined.
“Here, there are several factors that merit strong consideration in assessing discipline. The first is the club’s prior record. In 2007 the club and several individuals were sanctioned for videotaping signals of opposing defensive coaches in violation of the Constitution and Bylaws. Under the Integrity of the Game Policy, this prior violation of competitive rules was properly considered in determining the discipline in this case.
“Another important consideration identified in the Policy is ‘the extent to which the club and relevant individuals cooperated with the investigation.’ The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.
“Finally, it is significant that key witnesses — Mr. Brady, Mr. Jastremski, and Mr. McNally — were not fully candid during the investigation.
“In accepting the findings of the report, we note that the report identified no evidence of wrongdoing or knowledge of wrongdoing on the part of any member of the coaching staff, including Head Coach Bill Belichick, or by any Patriots‘ staff member other than Mr. Jastremski and Mr. McNally, including head equipment manager Dave Schoenfeld. Similarly, the Wells report is clear that Patriots ownership and executives did not participate in any way in the misconduct, or have knowledge of the misconduct.
“Nonetheless, it remains a fundamental principle that the club is responsible for the actions of club employees. This principle has been applied to many prior cases. Thus, while no discipline should or will be imposed personally on any owner or executive at the Patriots, discipline is appropriately imposed on the club.”
LET THE APPEALS AND RECRIMINATIONS BEGIN
Brady and the Patriots are almost sure to challenge the NFL’s discipline. The HR Law Insider will publish a follow-up edition after the dust settles. Until then, I am considering applying for an assistant coach position to try and smooth the waters in New England and ensure that all balls remain INflated:
Texting is becoming commonplace in society — and the workplace. Texting can be a useful tool. However, texting problems are surfacing in the press and in the courts on a seemingly daily basis.
The Tom Brady “deflate gate” debacle presents an excellent example of how texts can be used against an organization or individual. After discussing the Brady situation, this edition of the HR Law Insider provides employers with some guidelines relating to employee texting.
TOM BRADY IS SACKED BY TEXTS WITH HIS BALLBOYS
Tom Brady is the quarterback of the New England Patriots football team. Brady has won four Super Bowls and many other accolades. He is married to Giselle Bundchen too. In short, life is good for Tom Brady — at least it was until this week.
On May 6, 2015, investigators hired by the NFL concluded that Brady likely conspired to deflate footballs in violation of NFL rules during a playoff game last year. If so, then Brady likely lied during the course of the NFL’s investigation of the incident. Brady’s image has been deeply tarnished and he faces imminent discipline from the NFL.
The NFL’s investigator’s report relied to a significant extent on electronic information obtained from cell phones. Obviously, the deflation conspirators did not think ahead and understand: cell phones contain a wealth of information that can and will be used against parties in litigation and other proceedings.
THE NFL’S USE OF TEXTS AGAINST BRADY IS TYPICAL OF HOW TEXTS ARE USED IN LITIGATION AGAINST COMPANIES AND INDIVIDUALS
“[T]aking the text messages as a whole, Brady is a constant reference point in the discussions between [ballboys] McNally and Jastremski about inflation, deflation, needles and items to be received by McNally. In response to Jastremski’s offers of sneakers and clothing, for example, McNally identifies Brady as the catalyst for those offers (“Tom must really be working your balls hard this week”; “Tom must really be on you”). And unhappiness with Brady is referenced by McNally as a reason for using the “needle” to inflate rather than deflate footballs (“Fuck tom….make sure the pump is attached to the needle…..fuckin watermelons coming”).
Brady is thus central to the discussions of inflation and deflation in the text messages. Additional evidence of Brady’s awareness includes a material increase in the frequency of telephone and text communications between Brady and Jastremski shortly after suspicions of ball tampering became public on January 19 suggests that Brady was closely monitoring Jastremski. After not communicating by telephone or text for more than six months (according to data retrieved from Jastremski‟s cell phone), Brady and Jastremski spoke twice by telephone on January 19 (calls lasting a total of 25 minutes and 2 seconds), twice on January 20 (calls lasting a total of 9 minutes and 55 seconds) and twice on January 21 (calls lasting a total of 20 minutes and 52 seconds) before Jastremski surrendered his cell phone to the Patriots later that day for forensic imaging. These calls included conversations relatively early during the mornings of January 19 (7:26 a.m. for 13 minutes and 4 seconds), January 20 (8:22 a.m. for 6 minutes and 21 seconds) and January 21 (7:38 a.m. for 13 minutes and 47 seconds).
Brady also took the unprecedented step of inviting Jastremski to the QB room in Gillette Stadium on January 19 for the first and only time that Jastremski can recall during his twenty-year career with the Patriots, and Brady sent Jastremski text messages seemingly designed to calm Jastremski (“You good Jonny boy?”; “You doing good?”). For his part, Jastremski sent Brady text messages confirming that he was okay (“Still nervous; so far so good though”) and cautioning Brady about questioning (“FYI…Dave will be picking your brain later about it. He’s not accusing me, or anyone…trying to get to bottom of it. He knows it’s unrealistic you did it yourself…”).”
TAKEAWAYS FROM BRADY’S FUMBLE
Businesses must take employees’ use of cell phones very seriously. Employers should assume that if there is a dispute or litigation between the company and an employee or third party, discovery will uncover:
Texts by the employee
Emails by the employee
To whom the employee had telephone conversations, and when and how long the calls occurred
Images or pictures taken and/or conveyed by the employee
Other information on the cell phone (possibly confidential company information)
Therefore, all businesses should implement and enforce clear policies regarding the use of cell phones and texting. Policies should state, among other things, that:
Employees should make personal cell phone calls or texts during break or lunch times to the maximum extent possible.
Employees must follow all company policies, and applicable local, state and federal laws and regulations regarding the use of cellphones, at all times.
Cell phone use, including but not limited to phone calls, emails, and texting, must never include language that is obscene, discriminatory, offensive, prejudicial or defamatory in any way (such as jokes, slurs and/or inappropriate remarks regarding a person’s race, ethnicity, sex, sexual orientation, religion, color, age or disability).
The use of camera or other video recording on company premises is prohibited without the express written permission of the President of the Company and of the person(s) present at the time.
Employees whose job responsibilities include driving and who must use a cell phone for business use, are expected to refrain from using their phone while driving. Allow voice mail or your passenger to handle calls when possible. Safety must come before all other concerns.
Any violation of this policy may result in discipline up to and including discharge.
Managers and supervisors are expected to serve as role models for proper compliance with the provisions above and should regularly remind employees of their responsibilities in complying with this policy.
In conclusion, implementing and enforcing a solid cell phone policy will prevent your company from being blind-sided and embarrassed by inappropriate and damaging texts.
For a different, but much funnier, take on the Brady situation, enter Jon Stewart:
On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rule making (NPRM) on how the Americans with Disabilities Act (ADA) applies to employer wellness programs that are part of a group health plan. The NPRM proposes changes both to the text of the EEOC’s ADA regulations and to interpretive guidance explaining the regulations that will be published along with the final rule.
The following questions and answers describe what the NPRM says and what will happen now that the proposed rule has been issued:
What is a wellness program? The term “wellness program” refers to programs and activities typically offered through employer-provided health plans as a means to help employees improve health and reduce health care costs. Some wellness programs ask employees to engage in healthier behavior (for example, by becoming more active, not smoking, or eating better), while other programs obtain medical information from employees by asking them to complete a health risk assessment (HRA) or undergo biometric screening for risk factors (such as high blood pressure or cholesterol).
How does the ADA affect workplace wellness programs? The ADA generally restricts employers from obtaining medical information from employees but allows medical examinations of employees and inquiries about their health if they are part of a “voluntary” employee health program. Prior to the NPRM, the EEOC had not said whether employers may offer incentives to encourage employees to participate in such programs or whether offering incentives would make participation involuntary. However, the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Patient Protection and Affordable Care Act (“Affordable Care Act”), allows wellness programs to offer incentives – in the form of rewards to participating employees who achieve certain health outcomes or penalties if participating employees fail to achieve health outcomes. The proposed rule clarifies that the ADA allows employers to offer incentives up to 30 percent of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes. The NPRM also describes employer practices that are wellness programs and those that are not, defines what it means for an employee health program to be voluntary, and explains how ADA rules requiring employers to keep medical information confidential apply to medical information obtained as part of voluntary employee health programs.
When is a wellness program considered “an employee health program” within the meaning of the ADA? A wellness program is considered an employee health program when it is reasonably designed to promote health or prevent disease. The program must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. For example:
Asking employees to complete a HRA or have a biometric screening for the purpose of alerting them to health risks (such as having high cholesterol or elevated blood pressure) is reasonably designed to promote health or prevent disease.
Collecting and using aggregate information from employee HRAs to design and offer programs aimed at specific conditions prevalent in the workplace (such as diabetes or hypertension) also would meet this standard.
However, asking employees to provide medical information on a HRA without providing any feedback about risk factors or without using aggregate information to design programs or treat any specific conditions would not be reasonably designed to promote health.
When is a health program considered “voluntary”? The NPRM lists several requirements that must be met in order for participation in employee health programs that include disability-related inquiries or medical examinations to be voluntary. Specifically, an employer:
may not require employees to participate;
may not deny access to health coverage or generally limit coverage under its health plans for non-participation; and
may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees (such as by threatening to discipline an employee who does not participate or who fails to achieve certain health outcomes).
Additionally, if a health program is considered a wellness program that is part of a group health plan, an employer must provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.
How much of an incentive may employers offer to encourage employees to participate in a wellness program or achieve certain health outcomes? The maximum allowable incentive an employer can offer employees for participation in a wellness program or for achieving certain health outcomes, and the maximum allowable penalty an employer can impose on employees who do not participate or achieve certain health outcomes, is 30 percent of the total cost of employee-only coverage. The total cost of coverage is the amount the employer and employee pay, not just the employee’s share of the cost. For example, if a group health plan’s total annual premium for employee-only coverage (including both employer and employee contributions towards coverage) is $5,000, the maximum allowable incentive an employer could offer to an employee in connection with a wellness program that includes disability-related questions (such as questions on a HRA) and/or medical examinations is $1,500 (30 percent of $5,000).
Why does the NPRM set the incentive limit at 30 percent of the cost of self-only coverage? This is an incentive limit under HIPAA that applies to wellness programs that require employees to achieve certain health outcomes (called “health-contingent” wellness programs). EEOC’s goal in the NPRM was to provide as much consistency as possible between the ADA and HIPAA.
What confidentiality requirements apply to the medical information employees provide when they participate in wellness programs? The proposed rule does not change any of the exceptions to confidentiality requirements provided in the EEOC’s existing ADA regulations but adds a new subsection. This section says that a covered entity only may receive information collected by a wellness program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer the plan. Wellness programs that are part of a group health plan, including those administered by employers, generally are subject to HIPAA requirements that mandate certain safeguards to protect the privacy of personal health information and set limits and conditions on the uses and disclosures of that information.
Will an employer that complies with the ADA and HIPAA rules applicable to wellness programs also comply with other federal nondiscrimination laws? The proposed rule clarifies that compliance with the ADA’s rules on voluntary employee health programs, including the proposed limit on financial incentives, does not relieve a covered entity of its obligation to comply with other employment nondiscrimination laws, such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act (ADEA), Title II of the Genetic Information Nondiscrimination Act (GINA), and other sections of Title I of the ADA. Thus, for example, even if an employer’s wellness program complies with the incentive limits, the employer would violate Title VII or the ADEA if its program discriminates on the basis of race, sex, national origin, or age.
What is the purpose of this proposed rule and what happens next? The NPRM is a notice alerting the public that the EEOC plans to change the ADA regulations and interpretive guidance as they relate to employee health programs and is seeking comments about the proposed revisions. Anyone who wants to comment has 60 days to do so, until June 19, 2015. Members of the public may comment on anything in the proposed rule and in the interpretive guidance accompanying the rule. However, the Commission has identified some specific issues of particular interest to aid in the development of a final rule, such as whether any additional safeguards are necessary to ensure that employees’ participation in wellness programs is voluntary. The EEOC then will evaluate all of the comments it receives and make revisions in response to those comments. The Commission will then vote on a final rule. After the Commission approves it, the final rule will be sent to the Office of Management and Budget and will be coordinated with other federal agencies before it is published in the Federal Register.
What should employers do until a final rule is published to make sure their wellness programs comply with the ADA? While employers do not have to comply with the proposed rule, they may certainly do so. It is unlikely that a court or the EEOC would find that an employer violated the ADA if the employer complied with the NPRM until a final rule is issued. Moreover, many of the requirements explicitly set forth in the proposed rule are already requirements under the law. For example, employers should make sure they:
do not require employees to participate in a wellness program;
do not deny health insurance to employees who do not participate; and
do not take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in wellness programs or who do not achieve certain health outcomes.
Additionally, employers must provide reasonable accommodations that allow employees with disabilities to participate in wellness programs and obtain any incentives offered. For example, if attending a nutrition class is part of a wellness program, an employer must provide a sign language interpreter, absent undue hardship, to enable an employee who is deaf to participate in the class. Employers also must ensure that they maintain any medical information they obtain from employees in a confidential manner.
Gone are the days of Beaver Cleaver, Father Knows Best, and Mayberry RFD. Most young employees do not even know of these iconic TV shows or the societal norms that prevailed during their heyday.
Today it is perfectly “normal” for young — and sometimes old — people to get tattoos and wear body piercings. America has changed and will continue to change. What many call progress, others will label the decline of civilization.
MUST EMPLOYERS AND BUSINESSES CHANGE TOO?
This edition of the HR Law Insider tackles the issue of whether the law prohibits employers from dictating grooming standards and employee appearances. Employers still have significant leeway regarding grooming standards and employee appearances. However, there are significant mistakes employers can make which may expose them to liability for discrimination. This article address a common problem areas for employers by analyzing a case in which a female employee sued Costco over its policy banning facial jewelry.
THE CURIOUS CASE OF COSTCO AND “THE CHURCH OF BODY MODIFICATION”
Kimberly Cloutier began working at Costco’s West Springfield, Massachusetts store in July 1997. Before her first day of work, Cloutier received a copy of the Costco employment agreement, which included the employee dress code. When she was hired, Cloutier had multiple earrings and four tattoos, but no facial piercings.
In 1998, Costco revised its dress code to prohibit food handlers, including deli employees, from wearing any jewelry. Cloutier’s supervisor instructed her to remove her earrings pursuant to the revised code, but Cloutier refused. Instead, she requested to transfer to a front-end position where she would be permitted to continue wearing her jewelry. Cloutier did not indicate at the time that her insistence on wearing her earrings was based on a religious or spiritual belief.
Costco approved Cloutier’s transfer back to a front-end position in June 1998, and promoted her to cashier soon thereafter. Over the ensuing two years, she engaged in various forms of body modification including facial piercing and cutting. Although these practices were meaningful to Cloutier, they were not motivated by a religious belief.
In March 2001, Costco further revised its dress code to prohibit all facial jewelry, aside from earrings, and disseminated the modified code to its employees. Cloutier did not challenge the dress code or seek an accommodation, but rather continued uneventfully to wear her eyebrow piercing for several months.
Costco began enforcing its no-facial-jewelry policy in June 2001. On June 25, 2001, front-end supervisors Todd Cunningham and Michele Callaghan informed Cloutier and another employee that they would have to remove their facial piercings. They did not comply, returning to work the following day still wearing their piercings. When Callaghan reiterated the no-facial-jewelry policy, Cloutier indicated for the first time that she was a member of the Church of Body Modification (CBM), and that her eyebrow piercing was part of her religion.
The CBM was established in 1999 and counts approximately 1000 members who participate in such practices as piercing, tattooing, branding, cutting, and body manipulation. Among the goals espoused in the CBM’s mission statement are for its members to “grow as individuals through body modification and its teachings,” to “promote growth in mind, body and spirit,” and to be “confident role models in learning, teaching, and displaying body modification.” The church’s website, apparently its primary mode for reaching its adherents, did not state that members’ body modifications had to be visible at all times or that temporarily removing body modifications would violate a religious tenet. Still, Cloutier interpreted the call to be a confident role model as requiring that her piercings be visible at all times and precluding her from removing or covering her facial jewelry. She did not extend this reasoning to the tattoos on her upper arms, which were covered at work by her shirt.
After reviewing information that Cloutier provided from the CBM website, Callaghan’s supervisor instructed Cloutier and the other employee to remove their facial jewelry. They refused. The following day, Cloutier filed a religious discrimination complaint with the Equal Employment Opportunity Commission (EEOC), which is empowered to enforce Title VII. 42 U.S.C. § 2000e-5.
When Cloutier returned to work for her next shift on June 29, 2001, she was still wearing her facial jewelry. She met with the store manager about her membership in the CBM and the EEOC complaint. During the course of the meeting, Cloutier suggested that she be allowed to cover her eyebrow piercing with a flesh-colored band-aid. The manager rejected the suggestion and told Cloutier that she had to remove the piercing or go home. She left.
During the week of July 7, 2001, Cloutier inquired of her superiors whether she could use vacation time to cover her absences and was told that she had been suspended. The following week Cloutier received notice in the mail that she had been terminated for her unexcused absences resulting from noncompliance with the dress code. She claims that this was her first notice that Costco had decided not to grant her request for an accommodation that would reconcile the dress code with her religious requirement of displaying her facial jewelry at all times.
The parties remained in contact after Cloutier’s termination through the EEOC mediation process. During a meeting on August 10, 2001, Costco offered to let Cloutier return to work wearing either plastic retainers or a band-aid over her jewelry (the same accommodation that Cloutier had suggested prior to her termination). The manager repeated the offer in a letter dated August 29, 2001, asking Cloutier to respond by September 6, 2001. Cloutier argued that neither of the proffered accommodations would be adequate because the CBM’s tenets, as she interpreted them, required her to display all of her facial piercings at all times. Replacing her eyebrow piercing with a plastic retainer or covering it with a band-aid would thus contradict her religious convictions. Cloutier asserted that the only reasonable accommodation would be to excuse her from Costco’s dress code, allowing her to wear her facial jewelry to work. Costco responded that this accommodation would interfere with its ability to maintain a professional appearance and would thereby create an undue hardship for its business.
THE EEOC FINDS THAT COSTCO VIOLATED THE LAW
The EEOC determined that Costco’s actions violated Title VII of the Civil Rights Act of 1964. It found that Cloutier’s refusal to remove her facial jewelry was “religiously based as defined by the EEOC,” that Costco did not allow her to wear her facial jewelry at work, and that there was no evidence that allowing her to wear the jewelry would have constituted an undue hardship. Based on this determination, Cloutier filed a suit against Costco in federal district court in August 2002 alleging a Title VII violation. Costco ultimately prevailed, but only after significant litigation.
EMPLOYER TAKEAWAYS: HOW TO DEAL WITH GROOOMING AND DRESS ISSUES
As a best practice, managers and employees should be trained that the law may require making a religious exception to an employer’s otherwise uniformly applied dress or grooming rules, practices, or preferences. They should also be trained not to engage in stereotyping about work qualifications or availability based on religious dress and grooming practices.
Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.
For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship.
When an exception is made as a religious accommodation, the employer may nevertheless retain its usual dress and grooming expectations for other employees, even if they want an exception for secular reasons. Co-workers’ disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference.
An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns IF the practice actually poses an undue hardship on the operation of the business. The employer should not assume that the accommodation would pose an undue hardship.
While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.
The next issue of the HR Law Insider will address the related issue of whether employers can mandate different dress and grooming standards for men versus women. As demonstrated in the following video, different perceptions among men and women can often lead to misunderstandings and discord (note: humor):
It is no secret that Americans are growing less healthy by the day. A report sponsored by the U.S. Department of Labor and the U.S. Department of Health and Human Services recently observed:
“Over the last several decades, an epidemic of “lifestyle diseases” has developed in the United States: Unhealthy lifestyles, such as inactivity, poor nutrition, tobacco use, and frequent alcohol consumption, are driving up the prevalence of chronic disease, such as diabetes, heart disease, and chronic pulmonary conditions. These chronic conditions have become a major burden, as they lead to decreased quality of life, premature death and disability, and increased health care cost. Furthermore, although chronic disease was once thought to be a problem of older age groups, there is a shift toward onset during Americans’ working age that adds to the economic burden, because of illness-related loss of productivity due to absence from work (absenteeism) and reduced performance while at work (presenteeism).
Out of concern about the impact of chronic disease on employee health and well-being, the cost of health care coverage, and competitiveness, employers are adopting health promotion and disease prevention strategies, commonly referred to as workplace wellness programs.”
Does your company offer a wellness program? If not, you may be missing out on healthier employees, increased productivity, and a leaner bottom line.
This edition of the HR Law Insider highlights Able Engineering’s successful wellness program, which has created healthier employees and reduced healthcare costs — the ultimate “win-win” for any organization.
ABLE ENGINEERING GETS HEALTHY AND SEES ITS HEALTHCARE SPENDING DECREASE BY 66%
Able Engineering is located at the Phoenix-Mesa-Gateway Airport where its employees manufacture, repair and overhaul aircraft parts for the aviation aftermarket. Able’s total employee count is around 500. Able started its wellness program in the summer of 2010. Since then Able has seen a 66% reduction in healthcare spend for employees that participate in the wellness program.
Able Engineering President, Lee Benson, believes:
“The end result with all wellness programs should be to reduce healthcare spend and have more alert, productive and generally happier team members. Unless you go all in you simply won’t get the results.”
10,000SF training/wellness facility on site with three full time trainers.
Employees that train two days a week for an entire month get 100% of their health insurance premium covered the following month. If not, they pay 20%.
Spouses and kids programs provided weekly.
Random drug testing for nicotine performed regularly. Any employees that come back positive are fired with no second chances.
Healthy cafeteria access for all employees.
Hiking, biking, running and team race clubs established.
Personal training for employees that request it or have special needs.
Supplements and protein drinks provided after every work out.
Benson is more than pleased with how his company’s wellness program is working:
“After rolling in the costs of full time personal trainers, cafeteria staff, subsidizing food, supplements and protein drinks, Able is saving over a million dollars a year by maintaining its wellness program. The problem with most wellness programs is that they don’t go nearly far enough. In addition to health insurance cost savings, Able team members have more physical, mental and emotional energy which in turn makes them a much more productive and high performance team!”
(Able Engineering CEO, Lee Benson)
DOES SIZE MATTER?
According to an Employer Survey, approximately half of U.S. employers offer wellness promotion initiatives, and larger employers are more likely to have more complex wellness programs.
Smaller employers often elect not to start a wellness program because of a concern about the monetary and administrative costs of a wellness program. This is a legitimate concern for any company. However, it can be minimized by first implementing low-cost measures and then gradually expanding the wellness program.
For most companies — large or small — it is not difficult to offer employee incentives to quit smoking, undergo a health risk assessment, or engage in healthy behavior. These are but a few examples of steps that most every employer can take to improve their employees’ health and reduce health care costs.
When it comes to considering whether to start a wellness program, every business owner should ask: can I afford to ignore my employees’ health and well-being?
CAVEAT: THERE ARE LIMITS TO ANY WELLNESS PROGRAM
Employers reaping the benefits of wellness programs continue to explore new ways to promote employee health and well-being — in turn reducing health care costs. This is particularly so given the obesity and diabetes epidemic confronting modern day America.
Employers have a wide range of options, but should understand that a number of laws and regulations at the federal and state level impose requirements and regulate the use of financial incentives in certain types of wellness programs. With respect to certain employment based Wellness programs requiring that individuals satisfy health-related standards, the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act, among other things, limit incentives and require the availability of a reasonable alternative standard for certain wellness programs if for an individual it is medically inadvisable to, or it is unreasonably difficult to, achieve the standard.
Consult with legal counsel and/or a wellness program professional if your company has any questions about starting or improving its wellness program.
Wellness programs offer the opportunity for companies to improve their employees’ lives and reduce costs. Able Engineering is a shining example of this truth.
The HR Law Insider wishes everyone greater wellness in their lives. In this regard, here is a video clip from the great Jack LaLanne on the benefits of treating ourselves well: