Questions and Answers
A Year in Review: Key U.S. Labor and Employment Law Developments in 2011 and What to Expect in 2012
January 24, 2012
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What if they are calling the ombudsman hotlines that are confidential?
Brad Cave
A: If the ombudsman policy and the harassment reporting policy do not specifically exclude the ombudsman as a method of reporting sexual harassment, the employer may be charged with knowledge of harassment complaints made to the ombudsman.
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Does a third party investigator have to be a licensed PI?
Brad Cave
A: A third party investigator does not have to be a licensed PI for the purpose of complying with Title VII best practices for the investigation of harassment claims, but some states may require licensure.
Stephen Hirschfeld
A: It depends on state law.
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What if any efforts were made to mediate the Alford case?
Ian Cooper
A: I was told that the case was a "no offer" case prior to trial. The trial judge required the parties to mediate after the post-trial motion hearing. Not sure if they mediated prior to trial.
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Any statistics about how many companies use an outside hotline reporting service?
Stephen Hirschfeld
A: I haven’t seen stats on this but the number using these outside services continues to increase.
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On the past case [Alford], with multi-million dollar damages, I was very surprised to see that Moore what acquitted....I'm confused. Did I miss something? Can you explain?
Ian Cooper
A: I really can't! Perhaps it is like OJ - higher burden of proof in the criminal case. Perhaps different rulings by the trial judges. The timing of it struck me: what would have happened had Moore been acquitted prior to the civil verdict?
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Does the position level of the harasser affect the verdict? Victim's harasser is her supervisor or is the general manager of the entire organization.
Ian Cooper
A: Good question. Certainly any common law claims premised on respondeat superior require proof that the harasser is an agent. Then you have issues about "course and scope." The parties battled significantly about Moore's authority and agency issues.
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We have been using an outside employee hotline for years and it has proved to be invaluable.
Ian Cooper
A: That is good to hear. Do you know the name of your provider?
We use MySafeWorkplace for our employee hotline
The employee hotline company we use is "THE NETWORK, Inc" out of Atlanta, GA
We use Associated Industries of Massachusetts (AIM) employer hotline - Boston, MA
We use Shareholder.com
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What if the employee is submitting electronic, signed, timesheets?
There is a special law that allows for this.
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If an employee believes that he or she is misclassified as an independent contractor, is there a process for filing a complaint with the DOL or IRS?
Susan Spradley
A: For the DOL there is no special process. A call can trigger an investigation and a wage claim if there is a misclassification. The person can also file a lawsuit for wages and overtime if the misclassification raises those issues.
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Any idea when we will know if the proposed OFCCP regulation passes or not?
Brad Cave
A: The OFCCP proposed disability rule is in the public comment period until February 7. See more info at: http://www.dol.gov/ofccp/regs/compliance/sec503/Sec503_Media_Release_2011-12-07.htm
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When the EEOC investigates a company on a harassment claim, do they also ask the company for records that managers and employees are trained on harassment, discrimination, etc.
Susan Spradley
A: They can, but they may not ask for it in all cases. It is good to provide even if it is not requested. This is often a key issue when defending a claim in court.
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Can you cite a case where the high school degree requirement was challenged?
Brad Cave
A: No. My comment was based on an EEOC informal discussion letter issued on November 17, 2011. You can read the letter through the EEOC webpage: www.eeoc.gov/eeoc/foia/letters
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How should a company handle an EEOC age discrimination case in regards to preparing a statement and their preparing their case?
Brad Cave
A: Lawyers have different styles. My preferred method is to make my strongest case in the position statement submitted to the EEOC immediately after the charge is filed.
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What is 100% healed policy?
Brad Cave
A: A policy that states that an employee cannot return to work until he or she is fully released by his or her physician to perform their job. The EEOC takes the position that a "100% healed policy" means the employer will not consider accommodation.
Employers need to have a policy addressing how to request accommodation, as well as a return to work policy that recognizes the potential for accommodation of restrictions.
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Why is it called the CAT's PAW Theory?
Answer forthcoming
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What is the Cat's Paw Theory?
Kelly Thurman
A: It is a lower level supervisor who is biased against an employee and uses his or her influence on the ultimate decision maker (who is unbiased) to encourage the decision maker to take an adverse employment action against the employee.
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Please explain Thompson’s reach.
Answer forthcoming
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At what point does being "overly cautious" create more problems?
Kelly Thurman
A: Being overly cautious could create problems I guess--the best advice I can give is to follow your policies and procedures. Review decisions that are being made and don't act just as a rubber stamp.
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With the added staffing and expanded resources from the federal agencies, could this mean that more discrimination charges will be filed and investigated in 2012? If so, any projection on what that number/percentage could be or will look like?
Brad Cave
A: It's fair to assume more charges will be filed in 2012, but it is difficult to predict whether the EEOC will be able to ramp up its efforts to reduce its backlog.
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Where can we find a sample of a policy addressing the request for an accommodation and return to work policy?
Brad Cave
A: Sample policies will be available on the ELA website soon. Any policy you consider should be reviewed by counsel and considered in conjunction with your other policies and practices.
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If the HR letter of dismissal to an employee indicated that the employee's approximately 6-month absence was a "severe burden" to operations, and specifically referenced that 12 weeks of the six-month absence was due to FMLA, is this grounds for an FMLA retaliation claim?
Brad Cave
A: It is difficult to say whether those statements would be enough, by themselves, to support a claim, but those statements would not be at all helpful in defending a claim, and would likely be enough to prevent the entry of summary judgment for employer. A jury would decide whether the statement in the letter indicated an intent to retaliate against the employee for the FMLA use. Also, it is important to note that the ADA may require additional unpaid leave, beyond the requirements of the FMLA, particularly in situations where the employee’s health care providers have predicted a return to work within a reasonable time.
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Should employers have formal policies prohibiting their supervisors and managers from associating (aka "friending") with their employees on social media?
Louis Dilorenzo
A: I think yes in most cases. Otherwise, the employer may be charged with actual or constructive knowledge of improper conduct..
Susan Spradley
A: So long as there is not a state law to prevent it then, yes, it is a good HR practice. Regardless management should know that what they post may someday be discoverable if an employment claim is brought and the manager is accused of wrongdoing.
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Interesting that this is being challenged out of South Carolina - Is there any relevance to Boeing?
Louis Dilorenzo
A: I don’t think so. South Carolina Governor has allegedly made pro-company statements. It is a right-to-work state, so other than a favorable environment generally, no connection that I know of.
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What is the likelihood of the "Quckie" portion of the Election rules that Member Hayes opposed so harshly being included in the Final Rule?
Stephen Hirschfeld
A: It looks fairly likely.
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What about employee dating? We don’t have a policy against it, but we strongly discourage it in our handbook. Now, one of our Accountants has started dating a Sales person. Is there anything we can do to cover ourselves?
Brad Cave
A: Not very romantic, are we? Most employers do not prohibit co-employee dating. I do suggest a policy that prohibits, or at least requires disclosure, of relationships between supervisors and non-supervisory employees.
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Once receiving the initial notice, which states "no current action required," should we wait for them to ask for a response? Along with the response or statement, should we include write ups and other evidence to support our side?
Brad Cave
A: Yes, I suggest you wait until the EEOC requests a position statement before submitting a position statement. It is my preference to include everything that supports my client's legitimate, nondiscriminatory reason for the action
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What's the current status of the Workforce Democracy and Fairness Act in the Senate? Is there anywhere to follow this Bill other than Congress's websites?
Brad Cave
A: The WDFA (HR 3094) was passed by the House on November 30 and placed on the Senate calendar on December 16. Do not expect any movement in the Senate until after November.
Louis Dilorenzo
A: It passed the House; waiting for action by the Senate. I expect it will be vetoed if they pass it.
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Many companies are using social media as an enterprise collaboration tool. However, should employers stay away from that to prevent comments about working conditions being posted by employees on the company-sponsored social media site/tool?
Stephen Hirschfeld
A: No. Don’t let the tail wag the dog. Call me and I will be happy to chat about this. 415-835-9011.
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