New EEOC data by state

Curious about how your state stacks up on the bigotry index?  Well, wonder no more--the EEOC has now published a state by state summary of its discrimination statistics.  As far as I can tell, the data is virtually useless, unless you are writing some type of research paper on long term trends in changing perceptions of the workforce about federal discrimination law, or want to scare potential clients into using your services.

But if you want to know what percentage of the national genetic discrimination cases are found in your state, this is the site for you.  E.g.,

	FY 2009	FY 2010	FY 2011
TOTAL CHARGES for Illinois	5,713	5,288	6,098
% of US total charges	6.1%	5.3%	6.1%
Race	2,148	1,985	1,997
% of US race charges	6.4%	5.5%	5.6%
% of total state charges	37.6%	37.5%	32.7%
Sex	1,574	1,385	1,371
% of US sex charges	5.6%	4.8%	4.8%
% of total state charges	27.6%	26.2%	22.5%
National Origin	652	610	606
% of US National Origin charges	5.9%	5.4%	5.1%
% of total state charges	11.4%	11.5%	9.9%
Religion	158	180	192
% of US Religion charges	4.7%	4.7%	4.6%
% of total state charges	2.8%	3.4%	3.1%
Color	145	120	148
% of US Color charges	4.9%	4.3%	5.2%
% of total state charges	2.5%	2.3%	2.4%
Retaliation (All)	2,008	1,999	1,949
% of US Retaliation (All) charges	6.0%	5.5%	5.2%
% of total state charges	35.1%	37.8%	32.0%
Retaliation (Title VII)	1,703	1,649	1,589
% of US Retaliation (Title VII) charges	5.9%	5.3%	5.1%
% of total state charges	29.8%	31.2%	26.1%
Age	1,406	1,235	2,279
% of US Age charges	6.2%	5.3%	9.7%
% of total state charges	24.6%	23.4%	37.4%
Disability	1,399	1,402	1,339
% of US Disability charges	6.5%	5.6%	5.2%
% of total state charges	24.5%	26.5%	22.0%
Equal Pay Act	66	60	50
% of US EPA charges	7.0%	5.7%	5.4%
% of total state charges	1.2%	1.1%	0.8%
GINA*	0	14	23
% of US GINA charges	0.0%	7.0%	9.4%
% of total state charges	0.0%	0.3%	0.4%

Somebody at the Commission probably got a nice performance bonus and raise out of this little project, so I encourage you to take advantage of viewing what your tax dollar hath wrought.  Happy perusing...

California Employers Beware

Every so often I get a decision crossing my desk that is so breathtakingly silly that I have to mention it. Sometimes, those silly decisions have significant ramifications for employers. And, it seems, a decision that meets both criteria is, nine times out of ten, coming from California.

I don't know what it is about California, but you would think the place with an economy approaching the status of Greece would have judges a little more sensitive to the business implications of their decisions. Not so. A relatively recent decision out of a Northern California appellate court sets a new standard for oddball analysis and pernicious result.

Here's the situation: a partner in a partnership complains to the other partners about allegations of sexual harassment by members of the partnership against partnership employees. Sometime after that, the partnership  reduces the partner's responsibilities and job title. She sues under California state employment discrimination law, claiming that the partnership is retaliating against her for raising the allegations of sexual harassment.

The thing is, a partner in a partnership is not an employee of the partnership, she's a member of the company ownership and management. She can't sue the partnership directly for employment discrimination, because that would be the functional equivalent of an employer suing itself for its own conduct. In fact, the California Supreme Court determined that a partnership is not the employer of its partners, and can't be liable to them for employment discrimination claims. Presumably this included retaliation claims, at least until this latest demonstration of California judicial reasoning.

The appellate court found that the partner could sue the partnership for retaliation, based on the fact that although the statute specifically exempted nonemployer entities (i.e., partnerships) from its coverage, this exclusion did not apply to non-employees (i.e. partners) who were acting to protect the status of partnership employees. Thus, a nonemployer could be sued by its nonemployee if the nonemployee complained about the nonemployer's actions with respect to actual employees.

This gobbledygook rationale creates all kinds of troubling scenarios for employers in the state. For example, if a delivery driver (a nonemployee) reports to one of his customers that he observes a customer manager mistreating a customer employee, and the customer then tells the delivery service that it does not want that particular driver to show up anymore, the nonemployer customer is liable to the nonemployee delivery driver for some type of improper retaliation (my thanks to my friend and LA partner John Barber for crafting this enlightening example).

Such a possibility makes absolutely no sense whatsoever.

It will be pure entertainment to see if other appellate courts follow this rationale, or if this decision gets unceremoniously dumped on appeal.  Until it does, however, the floodgates of retaliatory discharge are now wide open on the West Coast.

Shortening the Statutes of Limitation in Employment Claims

Federal employment discrimination claims have fairly limited statutes of limitation, e.g., a plaintiff typically must bring a charge of discrimination before the EEOC or state Fair Employment Practices agency no later than 300 days after the last occurrence of prohibited conduct. But some state law claims have much longer statutes of limitation, and federal discrimination claims brought under 42 USC §1981 can be filed 4 years after the discrimination occurred. Fair Labor Standards Act claims are similarly lengthy, typically reaching back 2 or 3 years, depending on the nature of the violation.

Obviously, it's to the advantage of the employer to limit the length of time allowed to an employee to file suit. Employment evidence is ephemeral--payroll  and evaluation records vanish, people get fired or retire, and critical electronic evidence disappears or is erased. Moreover, back and front pay liabilities become more significant the longer the claim languishes, and these delays can limit the ability of employers to take remedial action to limit damages.

It comes to a surprise to many employers that it's sometimes possible to limit the statutes of limitation through the simple expedient of using an employment agreement. A recent example is found here, in a Sixth Circuit case involving a USERRA claim (sidenote – given my background, I am highly sympathetic to USERRA claimants, and I am in this case).

The plaintiff here was terminated shortly after he returned from a one-year tour with his Marine unit in Iraq. Although he filed a claim with the US DOL for investigation under the statute, he did not file his wrongful termination lawsuit until almost 3 years after he was fired.

His former employer moved to dismiss the case based on an employment agreement between the parties that specifically stated that any lawsuit arising out of employment, including federal civil rights claims, had to be brought within 180 days of the event giving rise to the claim. The district court agreed with the employer and dismissed the case.

Most of us who practice in this field would have some serious concerns with this ruling for at least two reasons. First, USERRA contains specific language that says that its terms supersede any contract that “reduces,  limits, or eliminates in any manner any right or benefit” provided under the law. That would seem to eliminate the ability of an employer to reduce a statute of limitations (please note that the claim in this case came before USERRA was amended to specifically state that there would be no limit on time to file a USERRA claim). Second, courts in general have been reluctant to limit a civil rights plaintiff’s ability to file a case based on a contractual modification; frequently employment agreements are viewed as contracts of adhesion because of the significant  advantage in bargaining power that the employer has at the time the employment starts.

But the Sixth Circuit approved the dismissal of the soldier’s case. It determined that absent a specific statutory provision, a contract can validly  limit the time for bringing a lawsuit to a period less than that laid out in a general statute of limitation, as long as it is reasonable. The court noted that 6 months (the provision on employment agreement) was certainly reasonable. The court then determined that the specific USERRA provision superseding contracts applied only to substantive USERRA rights, e.g. compensation, reinstatement, etc., and not to procedural rights such as statutes of limitation. In other words, even though the employee might have believed he had 4 years to file his complaint, the contract he signed limited him to 6 months, and no more.

As I noted above, USERRA has been amended so that an employer can not limit a statute of limitations with respect to reemployment or discrimination claims under that particular law. But there are other statutes that do not contain language prohibiting a shorter period of limitations. Employers should consider language in all of their employment agreements providing for a short, but reasonable, time in which to bring any type of employment claim.

Fired for Premarital Sex Versus For Being Careless-It Matters

A recent 11th Circuit Court of Appeals case has some moderately salacious facts, but really sends a lesson about not being careful with how you handle employee counseling sessions, especially when the session might lead to a termination.

The female plaintiff in this case worked at a small, Christian school as a teacher.  She became pregnant when she and her fiancé jumped the gun a little on the wedding night festivities. Within a month of discovering that she was pregnant, they got married.  Two months later, she informed her supervisors, the owners of the school, that she was pregnant and would need maternity leave at the start of the following school year.  During the course of her discussion, she admitted that she was pregnant at the time she was married; the school fired her the following day for engaging in premarital sex, conduct which the school management described as "disobeying the word of God."

The former teacher sued, alleging pregnancy discrimination under Title VII, and state law claims for marital status discrimination and invasion of privacy. The federal judge dismissed the pregnancy discrimination and marital status claims on summary judgment, and the plaintiff appealed up to the 11th Circuit.

The appellate court correctly noted that although premarital sex and premarital pregnancy are closely linked (thank goodness for mandatory sex education courses), it's perfectly permissible to fire someone for engaging in premarital sex, but not for being pregnant. The lower court determined that the plaintiff had no case because she could not show that there was a pregnant comparator in the workforce who did not engage in premarital sex and was terminated, but the appeals court said this was casting the analytical net too narrowly. What the plaintiff had to do was show that there were circumstances indicating that the pregnancy was in fact the real reason for the termination.

This the former teacher was able to do. Specifically, she was able to show that during her interrogation (I can hardly characterize it as an interview), school management made some offhand comments that seemed more concerned with her pregnancy and the associated maternity leave, than with the fact that she was disobedient to the Big Guy. Moreover, at his deposition, one of the owners indicated that there would not be a problem if the plaintiff had only apologized for her pre-marital shenanigans. Unfortunately for him, she apparently had already apologized, thus casting doubt on whether premarital sex was the real reason for the termination.

So the moral of the story here is to not freelance these types of employee interviews, but rather have some type of plan with respect to what you're going to say, and what you're going to do after the interview.   Thinking out loud usually ends up adding nothing to the discussion, but creates plenty of opportunity for problems later on.  I often ask my clients to tell me in a single sentence why they are making the decision.  That typically clarifies the thought process and leads to a better decision.

On Being Authentic, Spearmint Rhinos, and Brogrammer Culture

Here are some interesting discussion topics that I didn't feel like writing a full blog entry about:

Keeping up the facade:  According to some new research from the University of Houston and the University of Greenwich in London, being yourself has virtually no value in the workplace. In fact, vocalizing what you're thinking or feeling and not trying to impress people, but rather acting openly and honestly, is basically irrelevant to how your job goes. As one researcher noted, "it's not a problem to be authentic or inauthentic at work… it just didn't matter."
Well, I was happy to read this. I can now divert my efforts at authenticity to more productive channels, like sucking up to authority figures.

To serve mankind:   In what will likely be a loveless pursuit, United States Tennis Association umpires working the US Open filed a class-action alleging that the USTA misclassifies the tennis judges as independent contractors, rather than employees. As it is in virtually all of these cases, the crux of the case is entitlement to overtime. The umps believe they are entitled to overtime as employees; the USTA maintains that as independent contractors, they are not. My money is with the USTA-the umpires work for three weeks of the year, hardly the kind of long-term association one would expect from an employee.
Of more interest is the settlement entered into by Spearmint Rhino, which is apparently the name of a group of adult nightclubs around the country. At various Rhino joints, the entertainment allegedly was not being paid the minimum wage as a result of employee misclassification and a class action of 11,000 exotic dancers (that's a lot of, well, a lot) commenced. $10 million later, everyone was happier, mintier, and horn--, uh, no.

Finally, one of the corporate departments that employment defense lawyers assume will not generate a lot of employee misconduct claims is the IT department.  The stereotypical IT person is generally mild-mannered, nerdy, and more interested in fixing viruses than going viral.
Count on Silicon Valley to shatter our inaccurate perceptions--welcome to the world of the "Brogrammer".  That's right, recruiters in the high-tech capital of the universe are luring talent with slideshows containing bikini-clad women, events with raucous drinking, and other frat boy inducements.  It's gotten bad enough that a number of programmers complained about some of the more lurid entreaties from recruiters.  All I can say is that this is the type of trend that keeps me fully employed, so party on, brogeeks, and crush that code, along with company behavior guidelines.

New FMLA Forms Available

The Department of Labor recently updated its approved forms requesting information required under the Family and Medical Leave Act.  Previous versions of the FMLA forms expired at the end of 2011, so employers that use the DOL forms for their FMLA programs should download and begin using the new forms immediately. According to the Department of Labor, the new forms are current through February 28, 2015, although how the DOL can predict that there will be no further changes in the FMLA until then is beyond me.
You can access the new forms here, on the DOL website. Updated forms include the Certification of Healthcare Provider for Employee's Serious Health Condition, Certification of Healthcare Provider for Family Member's Serious Health Condition, Notice of Eligibility and Rights & Responsibilities, Designation Notice, Certification of Qualifying Exigency for Military Family Leave, and Certification for Serious Injury or Illness of Covered Service Member-for Military Family Leave.
You should note that the new forms do not contain the so-called "safe harbor" language required to give an employer some coverage in the event that there is disclosure of genetic information in violation of the Genetic Information Nondiscrimination Act  ("GINA").  As a reminder, here's the language that should accompany any request for health-related information from an employee:
The  Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers, and other entities covered by GINA Title II for requesting or requiring genetic information of any individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family members genetic tests, the fact that an individual or individuals, family member, sought or received genetic services, and genetic information of the fetus carried by an individual or individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

The Illinois Trade Secrets Act Is for Trade Secrets

A recent decision by an Illinois federal court provides useful guidance on the scope and preemptive effect of the Illinois Trade Secrets Act.  The case involves a claim by a supplier that Caterpillar misappropriated both trade secret and non-trade secret confidential information as a result of the transaction between the supplier and Caterpillar. Specifically, the supplier alleges that Caterpillar used its proprietary information to design its own versions of the supplier’s product in order to avoid dealing with the supplier in the future.

The supplier brought suit, alleging a breach of the Illinois Trade Secrets Act, unjust enrichment, and fraudulent inducement, resulting from Caterpillar’s supposed promises to provide significant business to the supplier in the future, in exchange for proprietary information today.

Caterpillar attempted to refine the issues in dispute by alleging that fraudulent inducement and unjust enrichment as causes of action were preempted by the Illinois Trade Secrets Act, which prohibits the wrongful appropriation of certain types of information. A quick refresher:  “trade secrets” are pieces of information that have economic value as result of their not being generally known to the public, and that are subject to reasonable efforts to maintain their secrecy / confidentiality.  Caterpillar was arguing that these other legal theories, which in some cases are more difficult to defend than a Trade Secrets Act claim, were improperly before the court because the Trade Secrets Act covers all that conduct.

There are other types of confidential corporate information that can be protected from disclosure, even though they do not technically comprise a trade secret. Certain business practices, processes, forms, etc., can be considered proprietary, even though their economic value, by themselves, is virtually nil.  The supplier in this case attempted to hedge its bet slightly with respect to whether certain information was a formal “trade secret” by alleging unjust enrichment and fraudulent inducement, which the supplier argued was not covered by the Trade Secrets Act at all.

After some gratuitous beating of the participants about the head and shoulders for not properly characterizing their filings before the Court (I consider the judge in this particular case to be a true expert on the federal Rules of Civil Procedure; his opinions ought to be mandatory reading in every law school in the country), the judge determined that the preemptive scope of the Trade Secrets Act was limited to trade secrets. While the Illinois Supreme Court had not opined on this state law issue, the federal judge looked directly to the language of the statute and determined that there was no preemption for claims based on information that did not qualify as a trade secret.

The decision here is quite useful (it’s also highly entertaining reading, for an intellectual property decision). Companies seeking to protect their intellectual property are not foreclosed from using the full range of business torts available to them, even if the information involved does not fit the formal definition of a trade secret.