avoiding workplace pitfalls for domestic and foreign workers - discrimination claims
DESCRIPTION
Employment lawsuits and government audits and investigations are at a record high. In 2013 the government settled the largest immigration fine in history with a Plano, TX based company in the amount of $34 million for charges of visa and I-9 non-compliance. Avoid the penalties, damages, and negative publicity for those who have been caught unaware. Regardless of size or industry, your company must be able to prove its observance of federal and state employment laws and regulations concerning both domestic and foreign workers. The Frisco Chamber of Commerce International Business Council and Cowles & Thompson, PC present three educational events to help your organization meet regulatory challenges for your domestic and foreign employee workforce. This presentation gives tips and tools to prevent and defend against employment and immigration discrimination claims.TRANSCRIPT
Avoiding Workplace PitfallsDomestic and Foreign Employee Compliance
Session II – Preventing and Defending Discrimination Claims
Agenda
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Discrimination Claims and North Texas Businesses
Immigration Anti-Discrimination Pitfalls
How to Prevent and Defend Employment Discrimination Claims
Discrimination Claims & North Texas Businesses
Mark HillShareholder, Cowles & Thompson, P.C.
Legal Landscape 100s of claims are filed in North Texas
State and Federal Courts everyday.
Employment claims against local businesses are an increasing part of the legal landscape in Collin, Dallas and surrounding counties.
Most Common Business Claims
Fiduciary cases Contract cases EMPLOYMENT cases
Employment Cases
Non-compete Confidentiality & Trade Secret
FLSA Discrimination
Common Types of Discrimination
Disability Race, National Origin Age
Gender Religion
Discrimination Claims Filed within Last 2 Weeks!
Disability Claims
Oil & Gas Company•Amnesia, Medications (pro se)
Consulting Business• Carpal Tunnel
Retail Business• Cancer, Treatment
Race/National Origin Claims
Automotive Business•Terminated, Retaliation Claim
Telecommunications Company• Performance
Hospitality Business• Harassment
Age Claims
Retail Business• Harassment, Policy
Financial Institution• Termination
What can the Business Owner do?
(…and how to help your case)
Written Policy
Consistent Documentation
Preserve Records/File
(…and how to help your case)
Evaluate Termination Basis
Witness ID & Review
Be Cautious with Communications
Recent Experiences
DFW Medical Center
Plano Technology Manufacturer
How to Prevent and Defend Employment Discrimination Claims
Brian FarringtonShareholder, Cowles & Thompson, P.C
Discrimination
What is Discrimination?-not necessarily unfair or unreasonable
What is the legal meaning of discrimination?-Adverse action against people because of
protected group membership.So, it’s illegal to discriminate because of:
Who is Protected?
-Race (Title VII of Civil Rights Act of 1964)-Color (Title VII)-National Origin (Title VII)-Religion (Title VII)-Sex (Title VII) -Age, 40 and up (Age Discrimination in
Employment Act—ADEA) -Disability (Americans With Disabilities Act—ADA)
Who is Protected?
In Texas, these laws only apply to employers who have:
-15 or more employees-on the payroll-for at least 20 weeks-of the current or preceding calendar yearOther states have lower thresholds, or even
cover all employers
Who is Protected?
States can also create additional protected groups—e.g.,
-Sexual Orientation-Marital Status-Off Duty Use of Legal Products
Direct Evidence of Discrimination
How do employees prove discrimination?One way is where there is DIRECT EVIDENCE of
employment decisions motivated by protected group membership—e.g., Slack v. Havens
Disparate Treatment
Where there is no direct evidence, there may be INDIRECT EVIDENCE. The most common model of a discrimination claim is DISPARATE TREATMENT (a/k/a the “SHIFTING BURDEN analysis”).
Disparate Treatment
Step 1: Employee must make a prima facie case. In a typical firing case, for example, here are the elements:
-Member of protected group-Suffers an adverse action-Qualified for the job-Replaced
Disparate Treatment
Step 2: Employer must “articulate” a “legitimate, non-discriminatory reason” for the adverse action. At this point, the Employer relies on:
Disparate Treatment
DOCUMENTATION-write-ups, performance appraisals, production records, attendance, etc.
CONSISTENCY-with what Employer said it would do (e.g., policies); and-with what Employer has done in similar situations in the past
Disparate Treatment
Step 3: Burden shifts back to the Employee:-PROVE that the reasons given by the Employer
are false-In the past, Employer would then have to show
false reason was “pretext” for discrimination-Now, just giving false reasons allows jury to
infer a discriminatory motive
In Hiring, Promotions:Where a “facially neutral policy” has a harsher
result for one or more protected groups than for others, it can be discriminatory.
Examples:-Height requirements in police departments-Unnecessary education/training requirements
Disparate Treatment
First articulated in Griggs v. Duke Power Co.:-prior to July 2, 1965, company would not hire
Blacks-started hiring Blacks on July 2, 1965, but also
started requiring high school diploma-in N. Carolina, only 11% of Blacks had diplomas
(31% of Whites)So HS graduation requirement had DISPARATE
IMPACT on Black applicants.
Disparate Treatment
If a criterion has a disparate impact, it is NOT automatically illegal.
BUT:Employer must PROVE that the standard is “job
related” and “consistent with business necessity.”
Disparate Treatment
EEOC is looking very hard at such disparate treatment issues as:
-Criminal background checks (“ban the box”)=must consider nature of offense, elapsed time, subsequent history, relation of offense to job.
-Credit checks
Disparate Treatment
“4/5ths” Rule:-if pass rate of any group is less than 80% of pass rate for other group(s), there is a disparate impact
Disparate Treatment
Testing: How does Employer prove a test that has a disparate impact is job related and consistent with business necessity?
Uniform Guidelines on Employee Selection Procedures—29 CFR 1607
Three ways to show test is valid
Disparate Treatment
1.Measures a skill or aptitude required by the job—e.g., typing test.
2.Identifies personality traits or aptitudes which are important to the job—e.g., communication skills in sales employees
3. Predicts success on the job—history shows that the better candidates do, the more likely they are to succeed.
Disparate Treatment
Pregnancy
Gilbert v. General Electric, 1976—discrimination against pregnant people NOT sex discrimination
Pregnancy Discrimination Act, 1978—Oh yes it is!
Pregnancy must be treated as any other temporary medical disability (but no special treatment or accommodation required)
Health insurance and income maintenance benefits must be equal
Seniority of female on maternity leave continuesException (BFOQ) very narrowly interpreted
-UAW v. Johnson Controls: as long as pregancy does not interfere with ability to perform job, employee must be allowed to work
Pregnancy
PDA does not require maternity leave, but FMLA does.
Family Medical Leave Act: covered employers must provide up to 12 weeks job protected leave for pregnancy (and other serious health conditions).
“Covered Employer” has 50 employees, or is government agency.
Pregnancy
Eligible Employee:-worked for employer for 12 months-in 12 months preceding leave, worked 1,250
hours or more-works at a location where employer has at least
50 employees within 75 miles
Pregnancy
Although PDA does not require “accommodations,” and ADA does not define pregnancy as a disability, EEOC is looking very hard at ways to protect pregnant employees. New guidance issued by EEOC recently points out that many conditions associated with pregnancy can be disabilities, and would require accommodation.
Pregnancy
Sexual Harassment
"Quid Pro Quo“-Exchange of job favors for sexual favors.-Done by Supervisor/Agent-Company is responsible.
Hostile or Offensive Environment-"Unwelcome" sexual advances.-Objectively offensive—reasonable person in the place of the victim would find conduct offensive
Sexual Harassment
"Unwelcome" Physical or Verbal Conduct of a Sexual Nature-"Unwelcome" - both objectively and subjectively-Must be serious and pervasive, not isolated or incidental
Sexual Harassment
-Physical conduct - touching, etc. - even one incident may be enough.
-Verbal=Comments on body, clothing, appearance=Jokes=Description/questions on love life=Miscellaneous—Pictures, novelties
Sexual Harassment
Company Liability—If hostile environment created by co-worker, company is not liable if:-Company did not know of conduct.-Company had no reasonable way to know.-Anti-harassment policy/complaint mechanism is in place
Sexual Harassment
Hostile or offensive environment if supervisor does it:-If supervisor does it, and a tangible job detriment occurs (e.g., demotion, discharge), employer is strictly liable-If supervisor does it, and no tangible job detriment occurs, company is liable but can raise affirmative defense
Sexual Harassment
Affirmative Defense-Company has widely disseminated and effective internal complaint process-Employee does not take advantage of internal complaint process
Sexual Harassment
Disability
Americans with Disabilities Act (ADA)Definition of "disability:"
-any physical or mental condition which substantially limits one or more of an individual's major life activities; or-a record of such impairment; or-being regarded as having such an impairment
Disability
Qualified individual with disability-meets basic qualifications (education, experience, etc.)-can, with or without reasonable accommodation, perform essential functions of job
Disability
-Requires "reasonable accommodation" unless "undue hardship" - tough definition of undue hardship
-Forbids any pre-offer inquiries about health/disability
Age Discrimination-Protected group is age 40 & up-NO MANDATORY RETIREMENT!-RIF's, layoffs - modified prima facie case
=RIF criteria applied uniformly=statistics alone don’t make a case (but support one)
Religion
Reasonable accommodation required, unless more than de minimus cost
Conflict with dress and grooming codesObservance of holidays, etc.
Interviews/Applications
If you need to know, ask; if not, don't:-Age, date of birth - child labor only-Race, religion, national origin - NO! (not even a photo)
Interviews/Applications
Disability, etc.-Have job description listing essential functions-Ask only if can perform essential function-If applicant initiates it, discuss reasonable accommodations
-Education - only to the extent relevant-Sex, marital status, family, etc. - don't ask-Arrest, conviction, deferred adjudication - you
may ask about convictions only - have disclaimer
Interviews/Applications
-Garnishment - No-Bankruptcy - No-Citizenship - No. Say that the company, in
compliance with IRCA, requires proof of identity and eligibility to work. (I-9)
Interviews/Applications
Application Form-EEO statement-Authorization for pre-employment testing-Misleading, inaccurate information or
omissions grounds for termination
Interviews/Applications
-Authorization for previous employers, schools, etc. to provide or confirm information. Release these from liability.
-Statement of at-will status (cannot be varied by anyone except --)
Interviews/Applications
Pre-employment inquiry guide – lists acceptable and unacceptable questions – most states with anti-discrimination laws have them—get one!
Interviews/Applications
Terminations
Do a risk profile:-Warning and chance to improve (unless must
fire ASAP)-Consistent with own policy-Age-Sex (pregnant?)-Effect on EEO profile
-Seniority-Replacement-Adequate documentation-Consistent with previous actions in similar
situations-Recently on medical/workers comp leave
Terminations
Termination Interview-Rehearse-Employer witness (who takes notes)-Choose time and place to minimize discomfort,
embarrassment, humiliation
Terminations
-Brief and clean - not too specific-Don't argue-Don't let them down too easily-Explain any benefits, last paycheck, payment of
vacation/sick/severance, COBRA, etc.
Terminations
-Allow opportunity to vent (he may even agree - good at trial!)
-No improper comments, and don't be trapped into making them
-Detailed narrative later - signed by both
Terminations
Immigration Anti-Discrimination Pitfalls
Angela M. LopezShareholder, Cowles & Thompson, P.C
Department of Homeland Security
U.S. Citizenship and Immigration Service (USCIS) www.uscis.gov - immigration benefits and services
U.S. Customs and Border Protection (CBP) – www.cbp.gov – border patrol and international travel facilitation
Department of Homeland SecurityImmigration and Customs Enforcement
Investigates employers for compliance with employment employer verification rules and removes undocumented aliens from the United States www.ice.gov
U.S. Department of Labor
Investigates employer verification compliance, visa compliance, violation of worker rules www.foreignlaborcert.doleta.gov
U.S. Department of JusticeOffice of Special Counsel (OSC)
Investigates and prosecutes charges of immigration-related unfair employment practices www.usdoj.gov/crt/osc
Prohibited Conduct
Citizenship or Immigration
Status Discrimination
National Origin Discrimination
Document Abuse Retaliation or Intimidation
Citizenship/Immigration Status Discrimination
Prohibits different treatment because of
citizenship or immigration status
Protects US citizens, recent permanent
residents, temporary residents, asylees or
refugees only
National Origin Discrimination
Prohibits different treatment because of place of birth, country of origin, ancestry, native language, accent, or looks or sounds
“foreign”
Protects ALL work authorized individuals
Document Abuse
Prohibits request for more or different documents than
required or rejection of genuine-looking
documents
Prohibits requirement of specific documents
based upon citizenship status or
national origin
Protects ALL work authorized individuals
Common Mistakes
Your supervisor catches you before you start interviewing applicants for a job. She says, “Find out if those two near the door have their ‘green cards’ before you waste your time.
Did you discriminate in hiring?
Common Mistakes
As president of your company, you issue a memo stating, “Please be careful when hiring people who look like they crossed the border illegally.”
Have you committed national origin discrimination?
Common Mistakes
You find two equally qualified candidates to fill one position. In deciding between the two, you decide on one because he is a permanent resident and the other, an asylee, only has a temporary work permit (EAD).
Have you committed citizenship status discrimination?
Common Mistakes
You implement an employee referral program. Unofficially, you tell employees that you prefer they only refer applicants who are U.S. citizens.
Are you in compliance with the INA?
Common Mistakes
You hire Angela Lopez and are surprised when she hands you a state-issued driver’s license and an unrestricted Social Security card for her I-9 form. You say, “I must see a card issued by the USCIS.”
Does Angela have a case against you?
Penalties for Anti-Discrimination Violations
$100 to $16000 depending upon
the violation
Back pay (no more than 2 years before
claim was filed)
Hire or re-hire Personnel Training
Attorney Fees
Recent OSC Settlements
June 12, 2014Violation: Commercial Cleaning Systems required work-authorized non-U.S. citizens to present specific documents issued by the USCIS in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation.
Settlement: $53,500 in civil penalties, $25,000 back pay fund a result of the company’s discriminatory document practices, and government oversight of its employment eligibility verification practices for one year.
Recent OSC Settlements
May 7, 2014Violation: Master Klean Janitorial subjected work-authorized non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation.
Settlement: $75,000 in civil penalties, undergo training on the anti-discrimination rules, revise employment eligibility verification policies, and government oversight of its employment eligibility verification practices for one year.
Recent OSC Settlements
April 24, 2014Violation: El Rancho required lawful permanent residents to present a new employment eligibility document after being hired when their Permanent Resident cards expired, even though the Form I-9 and E-Verify rules prohibit this practice because lawful permanent residents have permanent work authorization in the United States, even after their Permanent Resident cards expire.
Settlement: $43,000 in civil penalties, undergo training on the antidiscrimination rules, and government oversight of its employment eligibility verification practices for one year.
OSC Stats and Trends
During Fiscal Year 2013, the Office of Special Counsel set a new record by
collecting almost $900,000 in civil penalties under the anti-discrimination provision of the INA. Over the same period, the Office also collected over $250,000 in back pay
relief for victims of discrimination.
OSC Referral Sources
USCIS
Department of Labor – Wage &
Hour
Legal Aid Bureaus
Immigrant Advocacy EEOC
What to Do Next?
Facts of each case are different. The general information provided here should not be relied and is not legal advice.
Consult with an experienced attorney to get the right advice for your specific circumstances.
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