Ten Tips for How to Avoid FLSA and Wage and Hour Claims

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Time ClockAn FLSA complaint, or its variant – whether it becomes a suit or is settled – will impact revenues, employee morale, productivity, create stress for management, and so on.

In addition, while the costs of defending an FLSA claim may be covered by an Employment Practices Liability policy (hopefully you have one), frequently the costs of settling back wages and fines are excluded from insurance coverage.

But what are the risks, you ask? In addition to the defense costs, employers can be found liable for the following:

  • Back Wages: up to 2 years of unpaid back wages, or 3 years for “willful” violations
  • Liquidated Damages: in the amount of two times or, if the violation is willful, three times the unpaid wages
  • Attorney Fees: shifting of Plaintiff’s attorneys fees to the employer if the Plaintiff prevails
  • Civil Penalties: fines of up to $1,100 per violation for willful violations 
  • Criminal Prosecution: very rare, but can happen for repeat or egregious offenders

For these reasons, and because I’m preparing for my upcoming FLSA presentation (shameless plug), and because lists are fantastic, I offer the following ten steps to help employers avoid employee wage disputes.

1. Determine Who is Entitled to Overtime Pay and Pay It.

Under the FLSA, employees must receive overtime pay (at 1.5 times the regular hourly rate) for hours worked over 40 hours in a work week unless the employees’ job duties make them exempt from overtime.  Job duties – not job titles, tradition, or whim – are key to determine whether an employee is exempt from overtime. The three-part test for exemption requires the following:

a. The employee is paid a set and fixed salary that is not subject to variations because of the number of hours worked or quality of work performance (the salary basis test).

b. The amount of salary meets a minimum level (the salary test).

c. The employee’s duties are primarily in the executive, administrative, or professional duties of the business (the duties test).

Any employee who does not meet all three is entitled to overtime compensation.

2. Keep Accurate Records of Hours Worked.

Why? Because you can bet disgruntled employees are.  In 2011, the DOL announced it had released a smartphone app with a “timesheet to help employees independently track the hours they work and determine the wages they are owed.”  Also, the FLSA requires that employers keep records on each employee including, but not limited to, the following:

a. hour and day the work week begins
b. total hours worked each work day and each work week
c. total daily or weekly straight-time earnings
d. total overtime pay for the work week
e. deductions from or additions to wages
f. total wages paid each pay period
g. date of payment and pay period covered

3. Keep Accurate Records of Payments and Deductions Made.

Paired to good recordkeeping for time worked is the practice of maintaining good documentation of when and how employees are paid. Employers that cannot prove they have paid employees are at risk of wage claims from employees who decide to claim they never received pay. Further, Iowa law requires that an itemized statement of the hours worked, wages earned, and deductions made.

4. Enforce Policies Prohibiting Working “Off the Clock;” Have Employees Sign their Time Cards.

FLSA suits involve complaints from employees worked through lunch, came in early, stayed late, waited in line, walked from one work station to another, answered phone calls or read work emails out of work hours, and so on, without receiving compensation. If nonexempt employees are working – even if they’ve been directed not to work late, or to take a break, they must be paid.

The DOL’s stance on this issue is clear – employers cannot sit back and accept the benefit of employees’ work time without paying for it. If you know or should know an employee is working without authorization, your is to use your power to enforce work rules (see 29 C.F.R. 785.13 – “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed”).

Make sure your employee handbook or policy reflects your commitment to paying non-exempt employees for all hours worked and strictly prohibit working “off the clock.” One way to guard against claims is to have employees sign time records (electronic signature counts, too!) to certify the record is a true and accurate reflection of hours worked, and further that the employee did not work any additional hours not reflected in the record for the period.

5. Get Written Authorization for Any Deductions from Wages.

Under the Iowa Wage Payment Collection Law, there are three categories of legal deductions from wages:

a. deductions ordered by a court (e.g., garnishments for child support, alimony, or civil judgments);
b. deductions required or specifically authorized by state or federal law (e.g., payroll taxes, guaranteed student loan wage attachments, and permissible administrative fees for garnishments); and
c. and deductions made for an otherwise lawful purpose accruing to the benefit of the employee, and authorized by the employee in writing.

Some employers want to deduct losses from breakage, stolen property, damaged equipment, and so on from an employee’s paycheck. Under most circumstances, it’s not permitted. Not unless the employee has acknowledged and agreed to it in writing. Some deductions are simply impermissible.

6. Pay Employees for Breaks or Meal Periods Less Than Twenty Minutes.

The FLSA treats breaks of fewer than 20 minutes as “hours worked,” and therefore compensable.
Meal periods of less than 30 minutes of uninterrupted time are also considered time worked. The safest approach is not to automatically deduct periods for a lunch break, but rather to have employees record hours worked – whether by sophisticated means such as ADP or other software, or simply a written record on paper. Again, the value of having employees sign these records cannot be overstated.

7. Be Sure Managers Know State and Federal Wage and Hour Laws.

The DOL has a number of tools, training materials, FAQs, and so on geared toward small businesses. Iowa’s Department of Workforce Development has similar tools. Because the area changes so rapidly, regular training and maintenance of subject knowledge is essential.

8. When in Doubt, Err in Employee’s Favor.

Often, a question arises about how to proceed where small employers are uncertain about whether an employee worked through a lunch period, should be docked for time off taken in excess of PTO, or other FLSA and other wage and hour questions. When in doubt, it’s safer (and cheaper) to err on the employee’s side.

9. Make a Clean Break with Departing Employees.

A good number of wage claims arise from an employee the employer thought was gone. Sometimes employees file wage claims for time worked beyond what the employer thought was the date of separation. In this event, the employer can lose its case if there is not some clear evidence that the employee received unequivocal notice he is no longer on payroll.
For that reason, the best practice is to issue separated employees some formal notice of work separation, listing the employment end date, stating the employee is no longer on payroll, and notifying the employee of when to expect his or her final check (make sure that’s within your state wage statute’s required timeframe).

10. If an Ongoing Employee Files a Wage Claim, Don’t Retaliate!

If an employee files a wage claim, makes a demand for wages due, or otherwise attempts to exercise his/her rights to recover what he or she believes is unpaid wages, don’t retaliate against the employee. Instead, conduct an investigation, make substantiated findings, and remember Rule 8 and err in the employee’s favor. Finally, do not withhold any wages that are conceded to be due – this is violation of another provision of Iowa’s Wage Payment Collection Law.

These are my top ten — from research and regulations to caselaw and practical experience.  Do you have any strong rules of your own to add?

Delaware Serial Plaintiff Loses Tenth(!) Employment Case in Federal Court

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Case-Dismissed-headFor most employers, employment lawsuits are hell.  They impact productivity, shift the focus away from core business activities, and usually impose stress on the whole organization.  They are also stressful for the Plaintiffs who bring them.

Well, most of them …

A Dover, Delaware woman who yesterday had her ADEA and Title VII claims national original discrimination claims iced appears to be on on a bit of a streak.

In booting her claims, the Court identified some NINE other federal actions she has filed, not to mention at least one underlying state action that isn’t cited in the opinion:

  1. Shahin v. Delaware, No. 13-2119, 2013 WL 3781368 (3d Cir. July 22, 2013) (affirming summary judgment in favor of Delaware Department of State, Division of Corporations);
  2. Shahin v. Delaware, No. 13-2120, 2013 WL 3781376 (3d Cir. July 22, 2013) (affirming summary judgment in favor of the State of Delaware’s Office of Management and Budget)
  3. Shahin v . De Solid Waste Auth., Dkt. No. 12-3435, 503 F. App’x 113, 114 (3d Cir. 2012) (affirming summary judgment in favor of the Delaware Solid Waste Authority on failure to hire claim)
  4. Shahin v. Delaware, Dkt. No. 10-4784, 424 F. App’x 90, 91 (3d Cir. 2011) (affirming summary judgment in favor of the Delaware Department of Finance for failure to hire claim)
  5. Shahin v. Delaware Dep’t of Transp., 405 F. App’x 587, 588 (3d Cir. 2010) (affirming summary judgment in favor of the Delaware Department of Transportation on failure to hire claim)
  6. Shahin v. Delaware Dep’t Of Fin., 344 F. App’x 765 (3d Cir. 2009) (affirming summary judgment in favor of the Department of Finance for the State of Delaware on failure to hire claim)
  7. Shahin v. Delaware, Dkt. No. 09-1757, 345 F. App’x 815, 816 (3d Cir. 2009) (affirming summary judgment in favor of the State of Delaware and the State of Delaware Department of Transportation — on failure to hire claim — as a sanction for failure to answer discovery)
  8. Shahin v. Delaware, Dkt. No. 07-4566, 271 F. App’x 257  (3d Cir. 2008) (dismissing civil rights action against the State of Delaware pursuant to § 1915(e)(2)(B), that arose out of unfavorable rulings against Shahin in underlying suits)
  9. Shahin v. Darling, Dkt. No. 09-3298, 350 F. App’x 605  (3d Cir. 2009) (affirming the District Court’s order dismissing Shahin’s action against nine state judges, two law firms, and two court reporters, seeking monetary damages for alleged violations of her federal and constitutional rights in underlying state court proceedings — this one appears to be “take two” of Docket No. 07-4566, above).

Of course, the dispositions were all unfavorable to her.

The claims of this suit consisted of allegations that the Delaware Department of Transportation failed to hire her because of age and national origin.  What the record showed, however, was that she was passed over by the state for the eminently reasonable reason that she didn’t return phone calls to her to schedule an interview.

[I can’t make this stuff up].

“FRD” Identified by AARP as New Associational Discrimination Matter Requiring Attention

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From Wikimedia under Creative Commons license

From Wikimedia under Creative Commons license

Prompted by this update from from Workforce.com today, I discovered the AARP has produced a white paper (full version at the link) from the AARP Public Policy Institute, billing itself as the “first in a series of AARP Public Policy Institute papers on issues of eldercare and the workplace.”

Titled “Protecting Family Caregivers from Employment Discrimination,” the white paper is authored by Joan C. Williams, Robin Devaux, and Patricija Petrac, from the Center for WorkLife Law, at the University of California, Hastings College of the Law and Lynn Feinberg, from the AARP Public Policy Institute.

Central to the paper is the concept of family responsibilities discrimination (“FRD”), which, again quoting the paper, “arises from the unfair treatment of workers with caregiving responsibilities, including workers caring for children, older adults, ill spouses, or other family members with disabilities.”

FRD Issues in Eldercare

While acknowledging that caregiving extends to all manner of individuals, the white paper focuses on eldercare.  It quotes some interesting statistics on the general “graying” of the american workforce, but it identifies that, while no existing law specifically covers the alleged bias against caregivers, that the following existing laws provide workers protection:

The Family and Medical Leave Act of 1993: The FMLA creates rights for eligible employees to take unpaid, job-protected leave for, e.g., caring for a parent or spouse with a “serious health condition.”  The law prohibits an employer from denying or discouraging such leave or from retaliating against anyone who requests or has taken FMLA leave.

The Americans with Disabilities Act of 1990: The ADA prohibits discrimination based on “association with” an individual with a “disability” as defined in the law, which has recently been expansively amended.  The ADA also offers protection to workers caring for individuals with disabilities.

The Rehabilitation Act of 1973:  The Rehabilitation Act was created to extend and revise the authorization of grants to States for vocational rehabilitation services, and it prohibits discrimination based on disability by the federal government, federal contractors, and recipients of federal financial assistance.  The standards used to determine employment discrimination are the same as those used in Title I of the ADA.

The Employee Retirement Income Security Act of 1974:  ERISA prohibits employers from firing or discriminating against any employee to prevent that employee from exercising his rights under any benefit plan.

Title VII of the Civil Rights Act of 1964:  This Act prohibits discrimination on the basis of race, color, religion, sex or national origin.  The white paper suggest that women caregivers, for example, may be able to allege discrimination if they have been mistreated based on gender stereotypes, like being less committed to their job than men.

The Age Discrimination in Employment Act of 1967: Prohibits discrimination against any employees 40 years of age or older.  Older working caregivers may have a basis to claim that family responsibilities trigger age discrimination in the workplace.

More importantly, the white paper identifies over 67 local municipalities in the more than 20 states with local ordinances or other laws prohibiting family responsibilities discrimination.  As employers, we should keep these on the radar, because it would appear that not only will these “associational discrimination” claims continue to be an issue, but further that at least the AARP will be pushing for more legislation on this issue in the future.

Recent EEOC Suits Highlight Importance of “Interactive Process” for Reasonable Accommodation under ADA Claims

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As a follow up to my piece yesterday, concerning Hancock Fabrics’ failure to engage in the required “interactive process” after an employee requested accommodation, I came across this concerning two EEOC lawsuits recently filed and concerning the same issue.  These EEOC suits, one in Maryland against KMart, and another against a car dealership in Arkansas both detail ADA issues that arose after the employer failed to consider an employee’s requests for accommodation.

Where Did These Employers Falter under the ADA?

It’s important to remember that these are simply lawsuits, based on claims by the EEOC and the individuals whose claims the EEOC is trying to enforce.  That said, the EEOC initiated both suits as a result of its commitments to its Strategic Enforcement Plan, which includes one goal (among six) to “address emerging and developing issues in equal employment law,” including reasonable accommodation.

If the EEOC is focusing on these issues, employers should.

The Kmart lawsuit (EEOC v. Kmart Corporation; Sears Holdings Management Corporation; Sears Holding Corporation; Civil Action No. 13-cv-02576) involved a potential employee (“PE”) who had been offered a position but needed to complete a drug screening prior to hire.  The drug test required that the PE submit a urine sample, which the PE was unable to do because of the PE’s kidney problems that necessitated regular dialysis.  The PE conveyed this to KMart and ask if there was an alternative way to submit to the drug screening, such as a blood test or hair sample.  Two weeks later, KMart advised the PE that all new hires submit to the standard urine drug test and denied the PE employment.

The Randall Ford car dealership in Fort Smith, Ark., is alleged to have violated federal law when it did not accommodate a used car manager who was allegedly terminated because of his disability (Docket No. 13-2206).  The EEOC’s suit alleges that Randall Ford violated the ADA when it refused to accommodate the used car manager’s disability as a result of a spinal surgery.  The manager asked to use a golf cart and for help in test-driving vehicles to determine their trade in value.  The company had the golf carts, but did not discuss the suggested accommodations with the manager, instead terminating him for unrelated misconduct.

An ADA Request for Accommodation Requires Employer Action

Ignorance is not bliss in this area of the law.  A request for accommodation requires action by the employer.  The cases show that the process does not have to be formal.

Even if the request is outrageous, no response from the employer means the employer has failed to engage in the interactive process required under the law.

Hancock Fabrics Missed the Boat After Employee’s Request for Accommodation Under ADA

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From juliejordanscott through flickr under CC 2.0 license

Viajuliejordanscott through flickr under CC 2.0 license

ADA claims are complicated.  Not only is there the rapidly changing law to contend with (and recent, very expansive, amendments), but there are nearly always substantive medical issues, and disputes about what they may or may not mean for the employee’s ability to work and the employer’s corollary obligation to provide accommodations.  Trials are complicated with medical experts, vocational experts, and so on.

Zimple v. Hancock Fabrics

In this recent case, Plaintiff Jolynn Zimple brought a lawsuit against Hancock Fabrics (“Hancock”) for claims of violation of the American with Disabilities Act (ADA) and the Iowa Civil Rights Act (ICRA).

The gist of her Complaint was that Zimple worked as the manager of the Waterloo, Iowa, Hancock store.  She claimed a prior right shoulder injury, and she was then injured during her employment, but was later released to work with restrictions not to lift over 20 pounds or lift anything above shoulder height.

Unfortunately, after she was released, Zimple had disagreements with her employer about whether she could do her job.  According to Zimple, she told her employer she was capable of working, possibly with an accommodation.  Hancock encouraged Zimple to either file workers’ compensation, take leave under the Family and Medical Leave Act (FMLA), or both.

Later, Zimple was placed on unpaid leave without having requested it (big no no).

The Claims

Zimple claimed that Hancock’s conduct in placing her on unpaid leave and not letting her return when the leave expired constituted a termination of her employment, was discrimination against her based on her disability, and was retaliation against her for seeking an accommodation.

Hancock sought to have the Court grant summary judgment in its favor, arguing that Zimple (1) could not perform the essential functions of her job, with or without reasonable accommodation (a good defense if you do it properly) and (2) that it had a legitimate non-discriminatory reason for her termination.

With respect to the first defense, the employer’s problem was that the record abound with disputes about just what were the essential functions of her position.  Three distinctly separate job descriptions were provided, and the employer didn’t really explore what Zimple could do (current, clearly defined job descriptions defining the essential functions are, for lack of a better word, essential).

Request for Accommodation Triggers the Employer’s Obligation to Engage in “Interactive Process”

Second, and more importantly, the employer failed to engage in the “interactive process” to develop a reasonable accommodation for the circumstances.  This was based on one email Zimple sent to her superior, wherein she requested the following:

With the cut in hours and with my permanent injury there are several times during my shift that there is only one person here with me. The problem is when we get busy I’m unable to help with the fabric and/or Deco I’m able to run the register but not necessarily the cutting. When I try to cut, I can cut for about 10 minutes then the pain in my shoulder starts and also my hand. We do have customers complain. What do you want me to do? Can you release some payroll to help with this problem if not what do you want me to do?

In the Court’s eyes, this was “a request to engage in an interactive process to develop a reasonable accommodation.”

The employer goofed because it never fully responded to this email request.  The employer instead denied her request to do payroll, but didn’t offer an alternative to it, didn’t show themselves as open to doing so, and did not offer to further discuss any other alternatives.

Instead, Hancock involuntarily placed Zimple on unpaid administrative leave and effectively terminated her when her leave ran out.  As a result, the Court determined that Zimple’s claims would proceed to a jury and denied Hancock’s request to have the lawsuit disposed of (via summary judgment) before trial.

gay-flag-best-one

I received updates today that two U.S. cites have recently passed ordinances expanding anti-discrimination protection to the LGBT community.

First is San Antonio, whose City Council on September 5, 2013, passed an ordinance amending existing anti-discrimination provisions “to expand the list of protected categories to include sexual orientation, gender identity and veterans.”  Probably not a big surprise, given that San Antonio is the seventh largest city in the U.S., and this kind of thing has been going on over some 30+ years now (Wisconsin was the first state to pass gay rights legislation in 1982).

The second is a bit more surprising, or at least to me.  A similar measure passed on August 27, 2013, in Oshtemo Township, Michigan, which sports a population of just above 20,000.  Advocates speaking in favor of the ordinance stressed that there was no state or federal protections for the lesbian, gay, bisexual and transgender community and that individual faith and beliefs are important but do not excuse discrimination.

 

Eighth Circuit Disses DOL in Opinion Kicking Employees’ FLSA Claims

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PPEFLSA claims have been on the rise in the past several years, most recently spiking over 7,700 cases filed in 2013This graphic shows the dramatic rise since 1990.  The Eighth Circuit in this decision considered two laborers’ “donning and doffing” claims for overtime against ConAgra, and, in finding for the employer, the Court dismisses a key Department of Labor opinion bearing on the case and sends the Plaintiffs’ claims to the cutting floor.

Workers’ Donning and Doffing FLSA Claim

ConAgra operates a facility in Marshall, Missouri, that produces frozen foods.  ConAgra requires employees to wear personal protective equipment (PPE).  To keep the equipment sanitary, ConAgra had agreed with the workers’ labor unions that ConAgra will furnish and launder the PPE.  As a result, the workers are required to “don and doff” their PPE on site in changing stations at the facility.  After donning their uniforms, workers walk to a time clock where they punch in at the beginning of the day.  At the end of the day, workers must punch out, walk to the changing station, and doff their uniforms.

The Plaintiffs, two laborers, filed suit against ConAgra under the Fair Labor Standards Act (“FLSA”), claiming that ConAgra failed to compensate them and other employees for (1) time spent changing in and out of uniforms, and (2) time the workers spent walking between changing stations and the time clocks.

FLSA Legal Background

The FLSA requires that workers are paid time-and-a-half for hours worked beyond forty in a week.  While the law does not define “work” or “workday,” an employee’s work begins with the first “principal activity” of employment and ends with the last such activity.  For time involving other “non-principal” tasks to be compensable, these activities must be performed between the first and last principal activities of the day.

Congress has weighed in twice on this issue in response to the Supreme Court’s treatment of the workday over the years. First, in 1947, Congress passed the “Portal to Portal Act,” which generally excludes time from the workday time spent walking, riding, or traveling to and from the actual place of work, and by excluding activities that a preliminary or “postliminary” to the principal work activities.

Second, two years later, Congress excluded time spent changing clothes from the hours and employee is working, providing that the time has been excluded by the terms of a collective bargaining agreement or custom and practice under a collective bargaining agreement.

The Court’s Rejection of DOL Guidance

The collective bargaining agreement for these employees expressly excluded the donning and doffing time as compensable work time, which should have ended the discussion.  The plaintiff workers still claimed that the donning and doffing time was a “principal activity” of their employment, and pointed to a DOL opinion supporting their claim.

The Court dismissed this argument, noting:

The Department’s views on whether excluded activities can be principal activities have changed with the vicissitudes of electoral winds, with no reference to its experience or expertise in the matter. . . . . Given this inconsistency, the Department’s position is “entitled to considerably less deference than a consistently held agency view.” . . . .  Indeed, for this reason, all but one court of appeals to consider the Department’s positions in this and similar contexts have decided not to defer to the “gyrating agency letters on the subject.”

Ouch.  This decision is noteworthy because Courts usually give broad deference to government agencies.  Apparently, the DOL’s “gyrations” are not well received by our own Eighth Circuit.

Termination of 76 Year Old Told He “Needed to Hang Up His Superman Cape” Found Wrongful

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super-hero-red-cape-mdIt’s a bird! It’s a plane! No, it’s … a 76 year old security guard …

Background

“Superman” Carylyn Johnson (more about that later) was a security guard for Securitas Security Services.  His duties included providing on-site security guard services at various locations.  Hired at the spry age of 70, Johnson’s employment record was virtually unblemished from when he was hired in 2004 until he was terminated in 2009 – he had only received one oral warning for sleeping on the job.

The Termination

When he was making his rounds at approximately 5:30 a.m. in the morning, and apparently in the 20th hour of his shift, Mr. Johnson collided with a parked truck.  For reasons discussed below, he was soon after terminated.

This opinion, issued just two days ago from the 8th Circuit Court of Appeals, details the circumstances Mr. Johnson’s Age Discrimination in Employment Act (ADEA) and Missouri law claim that Securitas Security Services fired him because of his age.

Johnson cited evidence that, prior to his termination, a Securitas supervisor had;

  1. called him “too old to be working” (tip – don’t say that);
  2. told him to “hang up his superman cape” and that he needed to retire (tip – again, not a good idea); and
  3. compared 76 year old Johnson with the supervisor’s 86 year-old father, who was no longer working (again – not a good idea).

After Johnson hit the truck at 5:30 in the morning, he tried to call his supervisor and claimed he couldn’t reach him because of bad cell phone reception.  He later got in touch with his supervisor at 7:00 a.m. and headed home.  He participated in a subsequent investigation, gave a blood test, and spoke with the human resources director.  Three days later he was terminated.

Johnson was terminated three days after the accident.  The reasons given were violation of company policy — by failing to follow protocol for reporting an accident — and by leaving his shift one hour early at 7:00 a.m. instead of 8:00 a.m.

After the trial court disposed of Johnson’s case by granting the employer summary judgment (pretrial dismissal), the Court of Appeals reversed the trial court’s findings, saying that Johnson’s case should proceed to a jury.  Ouch.

Why the Employer Got Nailed

Here’s why:

  1. The supervisor’s comments.  While probably made in jest, comments like these are just a breeding ground of uncertainty when they’re later tied to a protected class status, which gets employment claims like these in front of juries.  Bad for employers.
  2. Evidence that two other employees had been in work-related accidents and were not terminated made Johnson’s discipline look harsher than that of younger employees.
  3. A legitimate dispute and question over whether his shift actually ended at 8:00 a.m., or whether it was 7:00 a.m., as he claimed.

Final thoughts:

Good, proactive discipline and termination decisions must be made within a context.  Within that context, you should examine how discipline and/or termination of other employees for similar infractions are handled.

In conjunction with that, review the basis for the discipline.  Does the employee/former employee have any argument that other employees were, or would have been, treated differently? If so, assess the risk.  Make your decisions from a position of strength.

U. Iowa Dean Who Botched Investigation on Sexual Assault Charge Not Discriminated Against

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Teamwork

The facts of this case have been in the media time and again, in different stages, under different circumstances, and in different venues.  It all arises from a terrible 2007 sexual assault perpetrated by two members of the University of Iowa football team against a female student-athlete.  It teaches us a valuable lesson about workplace investigations.

Background

In this chapter, Phillip E. Jones, who had been the Dean of Students and Vice President of Student Services at the University of Iowa, filed suit after he was terminated from his employment by University of Iowa President Sally Mason in 2008.  The University’s decision was based in part on a report from the Stolar Partnership, a law firm retained by the University to investigate the University’s response to a sexual assault of a student–athlete by other student athletes.

The Workplace Investigation

The investigation showed Jones had dropped the ball in many particulars, in what amounted to a complete failure to follow up on the complaint.  Some particular examples include: (1) not following up on any of the reports or information he received from other University personnel, or the investigators, by claiming he “hadn’t received a formal complaint;” and (2) by alleging that he did not even know who the victim or her mother were when they followed up with him on the (lack of) investigation on his end.

After he was terminated because the President Sally Mason indicated she had lost faith in him, Jones sued the University of Iowa, Mason, the Regents, and Stolar for invasion of privacy, defamation, wrongful termination, intentional interference with an employment contract, intentional interference with prospective business advantages, due process violations, and civil rights violations.

The case is not terribly interesting for Jones’ claims — he didn’t have any that survived — but it is an interesting read because it shows some of the workings of a full scale external workplace investigation conducted by a law firm on the University’s behalf.

In a unanimous decision of 36 pages, the Iowa Supreme Court noted Jones’ myriad failures in his failure to investigate the sexual assault, and the Court systematically disposed of each of his claims.

Final Thoughts

I’m a big believer in employer investigations, as troublesome and unwieldy as they can be, and the deference the Court gives to the investigators in this decision is a prime reason why.  The investigation and its findings play a central role in this decision, and the workplace investigation has the effect of substantiating the University’s decision in terminating the Plaintiff.

Remember, when the going gets tough, a good, thorough investigation can oftentimes be your best protection if any disciplinary decision is later challenged.

Don’t Tell Employer “Take This Proposal and Shove it up Your ***” During Mediation

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Take this Offer and Shove It!This happened at the end of July, in the Seventh Circuit Court of Appeals in an opinion authored by acclaimed jurist Judge Easterbrook, but I just had a chance to finally read it.  Perhaps you’ve heard about it on the radio or news.

The Pitch

The opinion, in a rare turn for Court of Appeals opinions, gets the reader hooked right out of the box:

After working at A.B. Data for four months, Michael Benes charged the firm with sex discrimination. The EEOC arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room. The intermediary shuffles between rooms. Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise. But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Benes stalked out, leaving the employer’s representatives shaken. Within an hour A.B. Data accepted Benes’s counterproposal: it fired him. He replied with this suit under 42 U.S.C. §2000e-3(a), the anti-retaliation pro- vision of Title VII of the Civil Rights Act of 1964.

This decision raises an issue that should make all employers sit up and take notice – can an employer still discipline an employee after the employee has filed a civil rights or other employment claim?

What Are You Allowed to do When an Employee Makes a Discrimination Complaint?

Legally, just because an employee files a discrimination charge or makes an internal complaint about discrimination, this does not make the employee immune to discipline.  Practically, though, employees can (and often will) raise a stink about any discipline they receive after a complaint, and simply add a retaliation charge to the mix.

The law defines retaliation as any action that might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”

Here, though, the Seventh Circuit noted that, the prospect of termination for telling an employer take its proposal and “shove it up your ***”  would not discourage a reasonable worker from making a charge of discrimination or participating in the EEOC’s investigation.

Put in other words, the Court referenced another of its decisions, that participating in activity protected by Title VII of the Civil Rights Act does not insulate an employee from being discharged “for conduct that, if it occurred outside an investigation, would warrant termination.”

I suggest applying what I call the 90% rule to this scenario.  For example, on the advice of one wise lawyer with whom I practice, I only make objections during a jury trial if I’m 90% sure the judge will grant or sustain the objection — I don’t want the jury to think I’m being obstructive.

In this scenario, if you want to discipline or terminate an employee who has participated in conduct protected under the Civil Rights Act, you better be 90% sure that you can justify the discipline with employees who have been similarly disciplined, a clearly defined workplace policy, or other evidence.

At least you know what to do if your employee does this …