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Employment Law Blog

Thursday, February 02, 2012

The Death of NLRA Disclaimers in Social Media Policies?

In 2011, the National Labor Relations Board (NLRB) made social media an enforcement priority. Their primary target was employers who terminated employees for engaging in what the NLRB deemed concerted activity, which is protected by the National Labor Relations Act (NLRA). The NLRB also took aim at supposedly “overly broad” employer social media policies.

In an effort to keep everyone abreast of the situation, the NLRB general counsel’s office released a memorandum with guidance ( regarding the agency’s social media cases. If you need a refresher, you can check out a quick summary of the protected activity here, and the overly broad social media policies here.

In response, many employer’s started including disclaimers or “saving clauses” in their social media policies. The disclaimer would state that the social media policy will not be interpreted or applied so as to prohibit NLRA-protected concerted activity. Well, guess what? The NLRB just issued a second social media memo ( One of the cases in the memo involved a policy with an NLRA disclaimer. To the dismay of employers everywhere, the memo concluded that the disclaimer was ineffective and the policy in question still violated the NLRA. That policy limited employee social media discussion to “appropriate” discussion of the terms and conditions of employment. Although the policy also included an NLRA disclaimer, the memo concluded, “that an employee could not reasonably be expected to know that [the disclaimer] encompasses discussions the Employer deems ‘inappropriate.’”

This is similar to advice from the NLRB GC’s office last year ( that another disclaimer or “savings clause” was ineffective. That savings clause stated that the underlying policy would not be construed as a limitation upon NLRA-protected rights. The advice memo found the clause insufficient, “ because employees may very well not know what conduct is protected [and] the general savings clause did not provide the employees any guidance as to what activities would be protected by the NLRA and therefore not restricted by the social media policy.”

So, are NLRA disclaimers dead? I’m not ready to throw in the towel just yet! There are two ways employers can avoid the defects noted in the NLRB guidance:

1.    Don’t just exclude “NLRA-protected activity” in your disclaimer and expect your employees to know what that means. Give them examples of the specific activities protected by the NLRA; and

2.    Don’t create ambiguities about whether those specific activities are really protected. I.e. don’t tell your employees that they may engage in “appropriate” concerted activity with no clue as to what’s appropriate and what’s inappropriate.

Will that be enough? Only time . . . or maybe a third NLRB social media memo . . . will tell.

Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.

Posted by Philip Miles on 02/02 at 08:52 AM
Sunday, June 26, 2011

Supreme Court on the Wal-Mart Sex Discrimination Class Action – Got Glue?

The Supreme Court recently issued its long-awaited decision in Wal-Mart v. Dukes (opinion), the largest class action discrimination suit in history. The bottom line is that the Court unanimously rejected the Ninth Circuit’s certification of a class comprised of approximately 1.5 million women who worked for Wal-Mart. The biggest impact of the Court’s decision, however, was the holding by five members that the claims lacked commonality. In the words of Justice Scalia, the class cannot sue over millions of employment decisions, “[w]ithout some glue holding the alleged reasons for all those decisions together.”

Now, employers facing or fearing class action discrimination suits will have to ask the preliminary question about the class: Got Glue? The Supreme Court’s opinion helps to define what is, and to a larger extent what is not, glue.

Corporate Policy

Can corporate policy be glue? You better believe it. In this case, however, there was no discriminatory policy. In fact, there was a company-wide policy of anti-discrimination. The plaintiffs tried to rely on Wal-Mart’s policy of granting broad discretion to individual managers in making pay decisions. But, in a company the size of Wal-Mart, “it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” In short, no glue.


The Court’s opinion notably downplays the value of statistical evidence in this situation. The plaintiffs provided statistical evidence which they maintain showed “statistically significant disparities between men and women at Wal-Mart [that] can be explained only by gender discrimination.” The Court reasoned that national and regional disparities failed to show discrimination at the district level, let alone the individual store level. “A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uniform, store-by-store disparity.”


Affidavits from individuals showing anecdotal evidence of discrimination can provide some glue, but it depends on the circumstances. For example, the Court noted a previous case in which there were anecdotes for every eight members of the class, mostly coming from the operational centers where the class members were based. Here, the plaintiffs had only 120 affidavits for 1.5 million people. Fourteen entire states had no corresponding anecdotes, and half of all states had only one or two for the entire state. That’s not glue.


The Court found the proffered expert testimony in this case unpersuasive to say the least. A sociologist testified regarding “social framework” analysis, which allegedly showed that Wal-Mart’s corporate culture was susceptible to gender bias. But, the expert couldn’t “calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” No glue. In fact, it is questionable whether his testimony was even properly admitted.


The Court used the Wal-Mart case as an example of a class with no glue. As discussed previously, it also provides some hints about where future classes may find some.

Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.

Posted by Philip Miles on 06/26 at 10:08 PM
Class ActionsEmployment LawSex Discrimination
Monday, June 20, 2011

Facebook Firing, Twitter Next?

You may remember that recently an employee was fired from her job for her CT employer AMR for posting negative information about her supervisor on her Facebook page. The case received notoriety because the firing caused the NLRB to file a charge against the company alleging that the company had violated the NLRA by firing this employee and by maintaining a social media policy that the NLRB claimed was overbroad.

Well, a similar case has now arisen involving an employee that was fired for comments he posted on Twitter or shall we call them for his “Tweets”. The Regional Director filed a charge against the company for this firing alleging that the firing violated the NLRA. However, the NLRB gave us some insight into the difference between the two cases (without actually discussing the Facebook Firing case) in an Advice Memorandum issued on April 21, 2011 by Barry J. Kearney, Associate General Counsel in the NLRB’s Division on Advice in which he advised the Regional Director to dismiss the charge against the employer.

In the Facebook Firing case, the employee was actually engaging in “concerted activity” on Facebook and this is what she was fired for. What does it mean that she was engaging in “concerted activity”? Well, it means that she was having a discussion on Facebook with her work friends and they were discussing her supervisor and her terms and conditions of employment. This is no different than standing around the water cooler talking with her co-workers about her supervisor and job and this is activity that the National Labor Relations Act protects. She cannot be fired for having these conversations. So the fact that they may have happened on Facebook rather than at the water cooler is irrelevant. As far as the NLR B is concerned, they are still protected.
So what happened in the Twitter case. In this case, a newspaper reporter that worked for the Arizona Daily Star newspaper was fired based on the tweets he was posting on Twitter. The newspaper was in the process of creating a Social Media Policy but did not yet have one although it did have an employee handbook. The employee used both his work computer at work, his home computer and his cell-phone to send his Tweets. The employee posted a Tweet making derogatory comments about the sports editors and sports department at the newspaper. HR then called him in to a meeting and he was told to stop commenting about the newspaper in any public forum and to stop airing his grievances publically. The employee allegedly continued Tweeting although he refrained about making comments about the newspaper.

Over a period of a month, he started sending Tweets that were inappropriate talking about some homicides that had taken place and then also sent a Tweet about an affiliate TV station that was again derogatory. He was suspended for three days and then he was terminated allegedly for violating the newspaper’s Respectful Workplace Guidelines. The newspaper relied on the fact that he had been “warned to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company” and yet he continued to engage in this activity.

What is most interesting about this case is how the NLRB viewed it and how it appears to differ from the Facebook firing case in CT. The NLRB held that this Twitter Firing did not violate the NLRA because of the fact that the tweets that the employee was fired for sending did not involve “concerted activity”. Although the employee claimed that the rule he was terminated for violating was “overbroad” as in the Facebook Firing case, the NLRB clarified that overbroad rules that could violate the NLRA only actually violate the NLRA and cause action by the NLRB when the employee was actually engaging in “concerted activity” at the time he/she was fired under the overbroad rule. Since the employee’s firing in the Facebook Firing case was actually based on her activity in discussing work conditions and making derogatory comments about her supervisor with other employees this was “concerted activity”. However, the NLRB reasoned that in this Twitter Firing, it was distinguishable because here the employee was not engaging in “concerted activity” when he was terminated. Rather, he was terminated for “posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. engaging in misconduct.”

The NLRB provided further insight by telling us that in this Twitter Firing case, the employee’s “conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.” Thus, this case is distinguishable from the Facebook Firing case because here the employee was discharged for tweeting inappropriate comments, ignoring warnings by his employer to stop this misconduct and continuing to post inappropriate comments despite these warnings by management. Significant to the NLRB was that his actions did not involve “concerted activity”.

The NLRB also commented on statements made by the employer in this case that could possibly be seen as overbroad and in violation of the Act but which were ultimately not a violation in this case because they were communicated to one employee as discipline during his lawful termination rather than being issued as a rule or policy to all employees. The statements that the NLRB indicated could violate the NLRA if made as a broad policy to all employees were as follows:

• Management warned the employee to “stop airing his grievances or commenting about the Employer in any public forum”; and
• Management warned the employee that he was prohibited from tweeting about anything work-related; and
• Management in its termination letter referred to that the employee had been told “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company”.

This case is helpful from many perspectives. First of all it sheds some light into the NLRB’s thought process with regard to social media policies and how they could potentially violate the NLRA. In addition, it clarifies that even if an employer had an overbroad policy such as a policy that included the overbroad statements above, it appears that termination of an employee for violating that policy would still not be held to be a violation of the NLRA if the employee was not engaging in “concerted activity” while using social media and thus was terminated for social media posts that did not involve “concerted activity”.

Copyright© 2011 HR Learning Center LLC
Submitted by: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
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As President of HR Learning Center LLC, Ms. Fleischer provides proactive solutions to management including on-site seminars and on-line webinars on a variety of employment law issues including sexual and unlawful harassment, workplace violence, FMLA and ADA. Ms. Fleischer can be contacted at 914-417-1715 or via e-mail at .(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 06/20 at 01:11 PM
Employment Law
Thursday, May 19, 2011

California Legislature Renews Marijuana Legislation

California politicians are back at it again. The Senate is considering SB 129, a bill which would make it illegal for employers to discriminate against medical marijuana smokers.

This new legislation follows on the heels of Proposition 19, which came before California voters in November 2010. Proposition 19 would have legalized the possession and use of up to an ounce of marijuana. California voters rejected that proposition by a margin of 54% no and 46% yes.

If the law passes, employers would be forbidden from taking any adverse action against an employee on account of the fact that the employee is a user of medical marijuana, or the fact that the employee tests positive for the use of medical marijuana.

SB 129 provides an exception to the discrimination ban where the employee is in a “safety sensitive” position.

The proposed law would permit an employer to terminate an employee who is “impaired” on the job because of medical marijuana. Like Proposition 19, the term “impaired” is not defined in SB 129.

The law would give an aggrieved employee the right to file a discrimination lawsuit.

California politicians may not be able to solve the state’s fiscal problems, but the do seem able to come together when it comes to legalizing drug use. In October, Governor Schwarzenegger signed Senate Bill 1449. That law essentially decriminalizes possession of an ounce or less of marijuana. The law states that there can be no jail time or probation, and fines cannot exceed $100. This is the equivalent of an infraction, like for a traffic ticket.

At the federal level, marijuana is illegal. The Controlled Substances Act (21 U.S.C. section 811) has no provision for medical use of marijuana. Federal law characterizes marijuana as any other controlled substance, such as cocaine and heroin. The law places this drug on “Schedule I,” meaning that it is considered highly addictive and having no medical value.

The California Supreme Court addressed the question of employee rights in the context of marijuana use in 2008. The case, titled Ross v. Ragingwire, involves a job applicant fired after a drug test came back positive for marijuana. The applicant presented a doctor’s note purportedly giving him a prescription to use marijuana for medical treatment. He claimed his use was legal under Proposition 215, the Compassionate Use Act. The California Supreme Court rejected his claim, ruling that the law provided no employment law rights, and that the employer was entitled to take adverse action because the drug remained illegal under federal law.

SB 129 has been approved in a Senate committee and it awaits a vote by the full Senate.  We will keep you posted on further developments.

Read the text of the proposed law.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
Employment Law Attorneys for Businesses

Posted by Christopher W. Olmsted on 05/19 at 10:25 PM
Employment Law
Thursday, April 14, 2011

USCIS Issues Final Rule on Employment Eligibility Verification Form (I-9)

U.S. Citizenship and Immigration Services (USCIS) announced today a final rule, scheduled to be published in tomorrow’s Federal Register, that adopts, without change, an interim rule to improve the integrity of the Employment Eligibility Verification (Form I-9) process.

The key changes made to the Form I-9 process by the interim rule and adopted by the final rule include:  prohibiting employers from accepting expired documents for completion of Form I-9 and adding and modifying several documents on the Lists of Acceptable Documents.  The final rule will be effective on May 16, 2011.  Employers may continue to use the current version of the Form I-9 (Rev. 08/07/2009), or the previous version (Rev. 02/02/2009).

USCIS Published the following FAQs along with its press release:

Questions and Answers

Q.  What does the final rule accomplish?
A. The final rule adopts, without change, the changes made to the Form I-9 process by the Department of Homeland Security’s (DHS) interim final rule that has been in effect since April 3, 2009. The changes further DHS’s ongoing effort to increase the integrity of the employment authorization verification process. The key changes include:

- Prohibiting employers from accepting expired documents
- Eliminating from List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated - Employment Authorization Cards)
- Adding to List A foreign passports containing temporary I-551 printed notations on certain machine-readable immigrant visas
- Adding to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

Q.  Why can’t I present an expired document?

A.  DHS wants to ensure that documents presented for use in the Form I-9 process are valid and reliably establish both identity and employment authorization. Expired documents are prone to tampering and fraudulent use. The requirement to present only unexpired documents takes into account the time limits placed on these documents by their issuing authorities. If a document does not contain an expiration date, as is often the case with a Social Security card, it is considered unexpired.

Q:  Does this final rule make any changes to how Form I-9 is completed?

A:  No. The final rule adopts, without change, the interim final rule published on December 17, 2008 and in effect since April 3, 2009. It does not make any changes to how the Form I-9 is currently completed.

Q:  Is USCIS issuing a new Form I-9 with this final rule?

A:  No. Because the final rule adopts the interim rule without change, USCIS is not issuing a new
Form I-9 with this rule.

Q:  Which versions of Form I-9 may I use?

A:  Employers may continue to use either the current version of Form I-9 (Rev. 08/07/2009) or the previous version (Rev. 02/02/2009).  These dates are located on the bottom right-hand corner of the form.

For more information, follow this link.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 04/14 at 03:24 PM
Employment Law
Monday, March 28, 2011

FLSA Protects Oral Complaints, But What About Internal Complaints?

Last week, the Supreme Court held in Kasten v. Saint-Gobain that the Fair Labor Standard Act’s (FLSA’s) antiretaliation provision protects both oral and written complaints. The FLSA creates employment rules regarding minimum wage, hours, and overtime pay. The antiretaliation provision makes it unlawful for employers: “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint.” The only question the Court resolved was whether oral, as well as written, complaints constitute “fil[ing] any complaint.”

While it is helpful for employers to know that oral complaints “count,” the biggest unresolved question is whether internal complaints, that is complaints from the employee directly to a private employer, are afforded FLSA protection. The Supreme Court “state[d] no view” on the issue, leaving it to the lower courts to decide. Well, many lower courts have already decided. In those jurisdictions, I anticipate the pre-Kasten determinations will control as the Supreme Court expressly avoided the issue. But, what about courts that have yet to decide the issue?

I expect courts that have yet to rule on this issue will find that the FLSA protects internal complaints to private employers. Why? First, most courts that have considered the issue have held that internal complaints are protected. Second, it helps to look at how the Supreme Court defined “filed any complaint” in Kasten: “[A] complaint is ‘filed’ when ‘a reasonable, objective person would have understood the employee’ to have ‘put the employer on notice that [the] employee is asserting statutory rights under the [Act].’” I think it is pretty clear that an internal complaint meets this standard. In dissent, Justice Scalia likewise notes that although the majority claims to leave unanswered the question of whether internal complaints are covered: “[T]he opinion adopts a test for ‘filed any complaint’ that assumes a ‘yes’ answer.”

So, what is the bottom line for employers? Are internal complaints to private employers afforded antiretaliation protection under the FLSA?

1. Look for precedent from the lower courts in your jurisdiction on this issue. Kasten does nothing to overrule these decisions.
2. Predicting how courts will rule on an issue can never be done with certainty. That said, if you’re in a court that hasn’t ruled on the issue, I think chances are that internal complaints will be covered.

Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.

Posted by Philip Miles on 03/28 at 07:09 AM
Tuesday, February 15, 2011

Supreme Court Holds that 3rd Party Retaliation Exists… but When?

In Thompson v. North American Stainless, the United States Supreme Court established that Title VII third-party retaliation claims exist. Specifically, an employer will be liable for retaliating against an employee who engaged in protected activity by terminating her fiancé. Now, employers are left wondering, “If firing the fiancé creates liability, what other relationships are covered?”

Justice Scalia, writing for a unanimous court (absent Justice Kagan who did not participate), provided some guidance but left many lines still to be drawn. Let’s start with the rule to be applied. The employer may be liable for retaliation where its actions “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” (aka the Burlington standard). That’s nice and all, but how is it applied?

The opinion lacks any real analysis regarding why firing the fiancé is sufficient to establish retaliation. Justice Scalia just states that the Court has “little difficulty” because it’s “obvious” that firing the fiancé meets the Burlington standard. While I agree, that’s not going to be much help in analyzing other situations. For example, whether suspending an employee’s girlfriend for seven days meets the standard is not-so-obvious.

Justice Scalia suggests that there are two factors that determine whether third-party retaliation is unlawful under Title VII: 1. The nature of the relationship; and 2. The severity of the employer’s action. Thus, he states: “We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.” What about terminating a mere acquaintance? Or a “milder reprisal” against a “close family member”? And what about not-so-close family members?

We know the ends of the spectrum, but employers are largely left in the dark with everything in between. The district and circuit courts will start to fill those gaps as the third-party retaliation claims hit the courts. Chances are, there will be a lot more third-party claims now that the Supreme Court has blessed them. For now, employers will just have to be careful when taking actions against employees known to have some relationship to an employee who engaged in protected activity.

Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.

Posted by Philip Miles on 02/15 at 02:01 PM
Employment LawSex Discrimination
Tuesday, February 08, 2011

Using Automation to Make Your Performance Evaluations Fairer and More Consistent

Employees and even managers often complain that their company’s performance evaluation process is inconsistent and unfair. Performance ratings are subjective, employee goals are unclear, competencies have little connection to the actual job, training opportunities are not available to all, etc.  As a result, many employees and managers either disengage or opt out of the process altogether, further compounding the problem.

Since performance evaluations are administered by people, it’s impossible to completely remove the subjectivity or even prejudice from your performance management processes. However, automating them can go a long way to making them fairer, more consistent, and ultimately more effective. Here are some of the ways automation can help:

Consistent Definitions of Competencies and Performance

Competencies are also sometimes called behaviors, values, skills, or performance standards, etc. They should really form the cornerstone of your performance evaluation process, and should be used to:

• help you evaluate “how” as well as “what” the employee accomplished
• identify the skills your organization needs to cultivate
• underpin your employee development programs to ensure they align with corporate goals

Most organizations have a list of the competencies that are important to their business. But they often lack consistent definitions of each competency, detailed descriptions of the various levels of performance, and a list of learning activities designed to help develop these competencies. And more importantly, they usually have no way of ensuring that their competencies are used and applied in a consistent way. With a manual or paper based process, it’s easy for managers create their own competencies or definitions, and modify their performance evaluation forms at will.

By automating your performance evaluation process and forms, you ensure that your competencies, and their definitions and behavioral descriptions are housed in one centralized library. Only authorized system administrators can add, change or remove competencies from the library. In so doing, you improve everyone’s access to competencies, but more importantly, you ensure a shared, consistent definition and understanding of performance. Because your performance evaluation forms are also automated, you can ensure that they only use competency content from the library, and can only be changed by an authorized system administrator. Now, you can be sure that your managers and employees are working from a common, consistent definition of performance.

Consistent Processes

Another common complaint raised by employees is the lack of consistency in the way performance evaluation processes are administered and applied. For example, with a manual or paper-based process, it’s virtually impossible to ensure that 100% of your employees receive an annual performance evaluation, on time or at all. Managers may use their “creativity” in completing forms, and add/remove/modify sections or rating scales at will. You may also find different approval processes in use in different parts of the organization. All of these inconsistencies allow subjectivity and possible human prejudice to color the way employees are evaluated and developed, which can also have an impact on how they are rewarded and promoted.

Automating your process allows you to :

• Define your process workflow (the steps and order in which they’re completed, who’s responsible for completing each step, and the due dates)
• Define required approvals, forms, rating scales,
• Apply (and enforce) these across the organization in a fair and consistent way.

While it’s important to have the flexibility to accommodate the special requirements of particular groups of employees, the decision to accommodate specific needs should be made at the organizational level, not at the individual level. Automating your processes and forms allows you to ensure they’re used in a fairer, more consistent manner.

Clear and Consistent Performance Requirements

Every job in your company should have clear performance requirements. Every employee’s performance evaluation form should clearly outline their job responsibilities, and the competencies and goals they will be assessed on.

Automating your performance management process allows you to ensure that clear and consistent performance requirements are set for every employee. By including the competencies and goals they will be assessed on in their performance evaluation form, or by running separate competency assessment and goal setting processes, you ensure that performance requirements are communicated.

In addition, automating your processes also allows you to track the exact status of all these activities, so HR and leaders can immediately see if an employee has not been given clear performance requirements, and take appropriate action.

Improving Access to Information

Automated performance management systems typically give employees one centralized place to access:

• Their goals
• The competencies on which they will be assessed.
• The development activities assigned to them or available to them
• Their past performance appraisals
• The organization’s higher level goals
• Etc.

By automating your performance management process, you improve employees’ access to information and drive a measure of accountability and transparency throughout the organization. 

You also give managers easy access to this information for all their employees. Having all this data at their fingertips helps them to be fairer and more consistent in their performance management practices.

Ability to Easily Aggregate Data and Spot Exceptions

Automating your performance management process gives you another powerful tool for identifying and addressing inconsistent or unfair management practices. By allowing you to easily and efficiently aggregate and compare the data from your processes, you can quickly spot trends or irregular practices and investigate their cause. For example, you can easily identify a manager who typically assigns all or some of their employees higher or lower performance ratings than most others. When the data from your performance management process reveals exceptions, leaders or HR can take appropriate action to restore fairness and consistency.


Because they allow you to drive consistency in performance expectations, job requirements, processes, forms, and rating scales, and make inconsistencies easier to spot, automated performance management systems allow you to overcome some of the subjectivity and human prejudice that plague people management practices and ensure all employees are supported in their performance and development.

Sean Conrad is a Certified Human Capital Strategist and Senior Product Analyst at Halogen Software, one of the leading providers of performance evaluation software. For more of his insights on talent management, read his posts on the Halogen blog.

Posted by Patrick Della Valle on 02/08 at 10:19 AM
Human Resources
Tuesday, January 11, 2011

Charges Including More Types of Discrimination

The EEOC just released its charge statistics for 2010, including historical data back to 1997. A few obvious things jump out at me. First, it’s a new record! In 2010 the EEOC received approximately 100,000 charges. Every single category, or basis for discrimination, saw an increase when compared to 2009. This year also marked the first year for GINA (Genetic Information Nondiscrimination Act) with a mere 201 charges.

The EEOC also included a note which stuck out to me:

The number for total charges reflects the number of individual charge filings. Because individuals often file charges claiming multiple types of discrimination, the number of total charges for any given fiscal year will be less than the total of the eight types of discrimination listed.

So I started wondering… is there any trend in how many types (or bases) of discrimination are being included in each individual charge? When I plotted the data, it turns out there’s an obvious trend:

From 1997 to 2010, the average number of types of discrimination included in each individual charge steadily rose from 1.43 to 1.66, an increase of 16%. For employers, this means a more complicated defense. It means discrimination charges are starting to include more types of discrimination. As the chart makes clear, the number has been steadily increasing over the years and I see no reason for this trend to stop.

Update (1/13/2011): I received an inquiry regarding my calculations so I am updating this entry to include my methodology so as to make clear what the chart actually depicts. I used the statistics provided by the EEOC (linked above). I calculated the sum of all of the rows for each year, excluding Total and Retaliation - Title VII Only (the latter would already be included in the row Retaliation - All). I then took the sum and divided it by the “Total” which the EEOC defined as “individual charge filings” to arrive at the average number of charges per individual charge filing.

Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.

Posted by Philip Miles on 01/11 at 02:13 PM
Employment Law
Monday, October 25, 2010


What a tragic incident that occurred at Rutgers University recently.  A freshman at the University, Tyler Clementi, jumped to his death off the George Washington Bridge after realizing that his roommate allegedly posted webcam pictures on the internet of Clementi having sex with another male.  There are currently invasion of privacy charges pending against the roommate and another student who allegedly assisted him. 

Hopefully, out of such a tragic accident some good can come.  One of the positive things that has come so far is that a US Senator, Frank Lautenberg has announced that he plans to introduce a bill that would mandate that all colleges and universities have Anti-Harassment Policies in place.  Apparently the pending legislation would also establish funding for colleges to institute programs that would help prevent harassment of gay students. 
There is currently no such federal law.  However, as a result of two significant US Supreme Court cases, Farragher and Ellerth in 1998, most universities and colleges already have Anti-Harassment Policies in place. These cases set forth a valuable affirmative defense that employers can avail themselves of if they can show that they have “exercised reasonable care to prevent and promptly correct any harassment” and if they can also show that “the alleged victim unreasonably failed to complain about the harassment”.  These policies usually prohibit all types of harassment including harassment of students by professors or staff, harassment of professors or staff by students, harassment of students by other students and harassment of staff or professors by other staff members or professors.  So although not required to have these policies by any federal law, most colleges have such policies in order to protect the institution from liability for harassment. 

There are currently only a very few state laws that require by law that employers including colleges have anti-harassment policies and conduct anti-harassment training.  However, unfortunately merely having such a policy is not enough.  Colleges and Universities need to provide Anti-Harassment Training to management on that policy including the correct members of management to report any complaints of harassment.  It is not clear whether the RA’s to whom Mr. Clementi complained about his rommoate’s harassment, followed up by reporting the harassment to the appropriate members of management such as HR.  If this did happen, then HR should have conducted a prompt thorough investigation into the incident and provided Mr. Clementi with the results of that investigation.  Mr. Clementi would have been protected after making this complaint from any retaliation for making the complaint, including retaliation from his roommate or the other student.  Following the investigation, if it was determined that Rutger’s Anti-Harassment Policy was violated, then the University could have taken prompt corrective action including disciplinary action against the students who violated the policy.

Clearly Universities and Colleges have the ability to control harassment on their campuses.  However, they have to go further than just having a policy.  Hopefully, if other Universities and Colleges can learn from this and ensure that in addition to having a well-drafted strong Anti-Harassment Policy they can also provide training to management and students on the policy and help to ensure that the policy is enforced throughout their entire campus.

Submitted By:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
.(JavaScript must be enabled to view this email address)


Posted by Patrick Della Valle on 10/25 at 11:46 AM
Tuesday, September 28, 2010

Push for the Paycheck Fairness Act and the Death of the “Any Other Factor” Defense

The Paycheck Fairness Act is proposed legislation that has been floating around Congress for a few years, with occasional flair-ups of interest. Just last week, Labor Secretary Hilda Solis hosted a webcast with co-host Lilly Ledbetter (as in the Ledbetter Fair Pay Act, and Supreme Court case Ledbetter v. Goodyear Tire and Rubber Co.) promoting the Paycheck Fairness Act (PFA). The PFA (Paycheck Fairness Act) significantly amends the Equal Pay Act.

One major component of the PFA is the death knell of the “any other factor other than sex” defense currently embedded in the Equal Pay Act. Instead of “any other factor,” the PFA will require employers to establish a “bona fide factor.” This will be significantly more difficult for employers to establish than the existing defense.

The statute includes “education, training, or experience” as examples of bona fide factors. In addition, the PFA would place the burden on employers to establish that the factor:

(i)  is not based upon or derived from a sex-based differential in compensation;
(ii)  is job-related with respect to the position in question; and
(iii)  is consistent with business necessity.

Even then, the employee can still prevail by demonstrating that “an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.”

Other Equal Pay Act provisions in the PFA would make class sizes larger in class actions, enhance penalties, and prohibit retaliation for certain salary-sharing activities. The legislation’s fate remains up in the air, but the push is on.

Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Posted by Philip Miles on 09/28 at 11:13 AM
Tuesday, August 03, 2010


Employers need to understand and better prepare for violence in the workplace when they plan on imposing discipline on employees.  Of course, this is especially true when management terminates employees or asks an employee to resign.  Such was the case this morning when management at a Hartford beer distributorship in Manchester, CT asked an employee, Omar Thornton, to resign.  Clearly upset about the discipline imposed, Mr. Thornton chose to take matters into his own hands and immediately took out a gun and started shooting in a group of 50-70 workers during a shift change in the early morning hours.  Apparently, eight employees including the gunman are dead from this incident. 

This type of response to employers imposing discipline is unfortunately not a new occurrence.  In April 2007 an employee in Houston, Texas was merely given a poor job performance by his manager at NASA.  His response was similar to the response of Mr. Thornton today.  Somehow he managed to sneak a gun into the highly secure NASA facility and shot and killed both his supervisor and himself.

Not necessarily the proper response when your employer disciplines you.  Yet it appears to be happening more and more these days.  Take for instance the case of workplace violence that occurred in Orlando, Florida on November 6, 2009 when Jason Rodriguez who had been fired from his engineering firm, Reynolds Smith & Hills more than two years earlier returned to his formed workplace and walked into his former office and began shooting, killing one and wounding five other employees.  He obviously was quite upset about his termination and told a reporter who asked him why he had done this that it was “because they left me to rot”.  Apparently, he had never forgotten the anger nor moved on from the resentment caused by his termination.  In addition, his marriage had ended, he could not pay the child support for his son, his home was taken in foreclosure and he had to declare bankruptcy.  Faced with all of these stresses, Mr. Rodriguez was driven over the edge and on November 6, 2009 walked into his former office and began shooting. 

More recently, there is the case of the University of Alabama neurobiologist and professor who was faced with a group of fellow-professors who decided to deny her tenure at the University.  This decision meant that her employment at the University would have come to an end in May 2010.  This employment decision was so devastating to Ms. Bishop that on February 12, 2010 she took out a gun at a faculty meeting with her colleagues and ended up shooting six of her colleagues and killing three of them.  She is now facing the death penalty.

How can employers be better prepared?  Each instance of workplace violence has to be used as a lesson for employers.  A lesson to be better aware of the warning signs of workplace violence.  Employers also need to be better prepared by ensuring that they have well drafted workplace violence prevention policies as well as providing workplace violence prevention training to all of their managers.  Such training will help familiarize the managers with the warning signs of workplace violence, inform managers of some possible resources within the workplace to assist employees that display warning signs of workplace violence and advise managers on methods to provide discipline that can help to avoid instances of workplace violence. 

In addition to employers learning to be better prepared for the possibility of workplace violence when disciplining employees, employers also need to be aware that harassment that is not dealt with can escalate and result in workplace violence.  Such appears to be the case in this morning’s shooting massacre.  Apparently, the gunman Omar Thornton, a 34 year-old African American had been upset by and complained to management about being racially harassed in the workplace.  Allegedly he had complained about a picture of a hangman’s noose and a racial epithet that had been placed on a wall in the bathroom at the beer distributorship.  Allegedly management did nothing to respond to his harassment complaints and may have in fact retaliated by asking him to resign.  Employers need to understand that when an employee complains about workplace harassment, the employer has a legal responsibility to respond to the complaint by undertaking an investigation and then taking prompt corrective action to stop the harassment.  Failure on management’s part to respond promptly can lead to liability.  Moreover, disciplining an employee after the employee has filed a harassment complaint can lead to claims of retaliation.  Management should ensure that they respond promptly to all claims of workplace harassment and take prompt corrective action which can include discipline of the harasser, up to and including termination.  Management should also provide training to all managers so that they understand what to do when they receive a harassment complaint, observe harassment in the workplace and/or have an employee that has filed a harassment complaint so they can better understand how to best avoid retaliation against the employee. 

Hopefully, today’s deadly and unfortunate incident of workplace violence will serve as a lesson to employers to ensure that they are better prepared to protect their workplace from incidents of workplace violence and to ensure that their employees are provided with a workplace free of harassment of any kind.

Submitted by: Melissa Fleischer, Esq.
HR Learning Center LLC
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© 2010 HR Learning Center LLC


Posted by Patrick Della Valle on 08/03 at 03:55 PM
Wednesday, July 07, 2010

The Post-New Process Steel World - What Happens Now?

In New Process Steel v. National Labor Relations Board (NLRB), the United States Supreme Court held that the NLRB needs at least three members to exercise its authority. This poses quite a problem because the Board had been acting with only two members for over two years. With this one opinion, the Supreme Court effectively invalidated about 600 cases decided by the NLRB. This leads to the question: what now?

Some Circuit Courts were quick to act. For example, the Sixth Circuit sua sponte remanded Galicks, Inc. v. NLRB, a case challenging the Board’s authority, within a week of New Process Steel. Only eight days after the Supreme Court’s decision, the Second Circuit simply denied the NLRB’s petition to enforce one of its two-member orders in NLRB v. Talmadge Park. Even the Supreme Court itself reacted to its own holding in New Process Steel by issuing summary dispositions on June 28, 2010. The dispositions granted certiorari, vacated the judgments, and remanded to the Circuit Courts from whence they came.

On July 1, 2010, the NLRB itself weighed in on the all important question: what now? The NLRB issued a press release summarizing its plan for “considering 2-member cases in wake of Supreme Court ruling:”

At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration. Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber (the original decision-makers). Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

It is unclear how many of the remaining decisions can or will be contested, but this is a start.

It will take some effort for the NLRB to work through these cases. And that’s assuming the federal courts comply with the request to remand to the Board. The NLRB is now at full strength for the first time since 2007 so we need not worry about unauthorized decisions for the time being. Given the shockwaves from New Process Steel, the Board will probably not be permitted to fall below three again. For now though, the plan moving forward is starting to become clear.

Submitted by:
Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Posted by Philip Miles on 07/07 at 11:47 AM
Monday, June 07, 2010

Learning Lewis but Remembering Ricci

Last month, the Supreme Court issued a unanimous opinion in Lewis v. City of Chicago. The Court held that a fire department’s decision to keep using results from an application exam in subsequent hiring decisions created Title VII liability. Why? Because the test had a disparate impact on African-American firefighters.

The City had argued that the statute of limitations had already run because the only discriminatory act was the placement of applicants into pools based on the test results. The Supreme Court rejected that argument, holding instead that the application of those classifications in subsequent hiring decisions constituted the start of the statute of limitations. In short, disparate impact liability attaches upon the application of a practice, not just its initial adoption.

The lesson for employers is pretty simple: Stop employment practices that have a disparate impact. So, if you’re an employer and you discover that the results of a promotion or hiring test disproportionately favor whites, should you stop? Having just discussed Lewis, you might be tempted to say “yes.” But, don’t forget about Ricci!

Last summer, the Supreme Court decided Ricci v. DeStefano. The Court held that New Haven was liable for race-based discrimination under Title VII for refusing to certify the results of a promotion exam. The City refused to certify the results when it discovered a racial disparity in the results. In short, the Court told the employer that it couldn’t ignore the test results based on race, and needed to keep going with the exam.

The trick for employers is knowing when to honor the test results and when to stop using the test. In Ricci, the Court held unequivocally that disparate statistics alone are not enough. The employer must have a “strong basis in evidence” to believe that the practice will result in disparate impact liability. Remember that an employer may successfully defend a disparate impact claim by demonstrating that the complained of practice is “job related for the position in question and consistent with business necessity.”

The combined lesson for employers from Lewis and Ricci is to examine ongoing practices and make an effort to assess the possibility of disparate impact liability. Just because an exam, or other practice, was adopted a long time ago doesn’t mean employers can just keeping using it. Meanwhile, employers cannot discriminate against a race by changing course when the racial statistics don’t come out as planned, unless there’s a strong basis in evidence to believe that the practice will result in disparate impact liability.

Submitted by:
Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Posted by Philip Miles on 06/07 at 06:31 PM
Monday, May 24, 2010


GINA (Genetic Information Nondiscrimination Act) is a federal law that was signed by President Bush two years ago on May 21, 2008 .  It applies to employers with 15 or more employees.  It was prompted by concerns that fear of being fired or treated unfairly by employers and insurers based on the results of their genetic testing would prompt employees to forego obtaining important genetic testing that they required.  Accordingly, Congress passed and President Bush signed the newest of the federal anti-discrimination laws prohibiting employers from discriminating against employees based on the results of their genetic tests. 

The first known case in this country to be filed under this new law exemplifies the very concerns that prompted Congress to pass this law.  Pamela Fink of Fairfield, Connecticut decided to have a double mastectomy in response to discovering through genetic testing that she had the gene that made her much more prone to develop breast cancer than others.  Ms. Fink worked for the MXenergy Company, a natural gas and energy supplier located in Stamford, CT.  Allegedly she had been a great worker and had received glowing performance appraisals from her employer year after year.  However, not long after she disclosed that she was having this voluntary double mastectomy as a precaution in light of the results of her genetic testing, everything seemed to change drastically for her at work.  She began being targeted at work for poor performance causing her to be demoted and ultimately discharged from her job for poor performance. 

If true, this is precisely what this new federal law was intended to prevent.  Employers are required to make employment decisions based on job-related factors such as whether employees are doing a good job rather than whether the employer believes that their insurance costs will go up because an employee is likely to develop breast cancer or other diseases.  This case will likely be followed closely by others to determine how the court handles such a case and what type of precedent will be created under this new federal law. 

Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
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©2010 HR Learning Center LLC

Posted by Patrick Della Valle on 05/24 at 07:13 PM
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