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Posts Tagged ‘EEOC’

EEOC Settlement With Florida Hotel Is A Reminder To Be Careful In Implementing A Mass Termination Program

Posted on: August 1st, 2018

By: Jeremy Rogers

Recently, the EEOC announced a settlement in a lawsuit brought against SLS Hotel in South Beach.  The lawsuit, filed in 2017, followed an investigation into charges made by multiple Haitian former employees who had been terminated in April 2014. They worked as dishwashers in three separate restaurants located in the SLS Hotel.  They alleged that they had been wrongfully terminated in violation of Title VII of the Civil Rights Act on the basis of race, color, and/or national origin. All told, there were 23 dishwashers fired on the same day in 2014, all but 2 of which were Haitian.  On the date of termination, each terminated employee was called into a meeting with the HR department and fired.  When fired, they allege, they were told that they must sign a separation and final release in order to receive their final paychecks.  Prior to termination, they claim that they had been subjected to considerable forms of harassment including verbal abuse (they assert they were called “slaves”), being reprimanded for speaking Creole among themselves while Latinos were allowed to speak Spanish, and being assigned more difficult tasks than non-Haitian employees.

What makes this case interesting is that SLS had re-staffed these positions using a third-party staffing company. The new staff supplied by the staffing company were primarily light-skinned Latinos.The new staff also included at least one employee who had been terminated by SLS, but that individual was also Latino.  Articles about this case from when it was filed,  show that the EEOC took the position that SLS was attempting to hide their discrimination behind the use of the staffing company. SLS, for their part, asserted that they had made the decision to change to the use of a staffing company 2 years before the mass termination. Despite this, the district director emphasized once again, when the EEOC announced the settlement, that the EEOC will not allow companies to hide behind business relationships to engage in discriminatory practices.  This was, according to the EEOC, just such a case.

So how egregious did the EEOC believe this case to be?  They accepted settlement on behalf of 17 workers for the sum of $2.5 million, which works out to just over $147,000.00 per employee if split equally.

If you have any questions or would like more information, please contact Jeremy Rogers at [email protected].

You’ve Got Mail! – EEOC Charge Filing Process Is Now Available Online Across the Country

Posted on: November 17th, 2017

By: William E. Collins, Jr.

For many people, “You’ve Got Mail” evokes fun memories of Tom Hanks and Meg Ryan bickering and then falling in love over the internet in the popular 1998 romantic comedy.  Now, however, this phrase may evoke far less pleasant emotions (at least for employers) as the EEOC announced earlier this month that its online Public Portal is available nationwide for employees to file charges.

The EEOC has been working on the roll-out of the Public Portal for years and, after piloting the Portal in the EEOC’s Charlotte, Chicago, New Orleans, Phoenix, and Seattle offices earlier this year, the EEOC has now launched the Public Portal nationwide.  The EEOC anticipates that the Public Portal will streamline the charge process and open up the intake and charge systems to more employees.

Not only can an employee provide and update personal information through the Public Portal, an employee can proceed with the normal intake process.  While the portal will not let employees immediately submit charges, the portal allows an employee to ask the EEOC representatives questions, provide them with information, and upload supporting documentation. At that point, an employee may digitally sign and file a charge online that is prepared with the help of an EEOC representative.

Because the EEOC plans to provide access to charging parties that have charges currently pending and the Public Portal allows instant communication with these charging parties, there is hope that the Public Portal will provide a more efficient and streamlined resolution for the 84,254 charges filed in the Agency’s 2017 fiscal year.  Because, however, the Public Portal provides an additional mechanism that is a faster, more immediate path toward filing a charge, commentators anticipate that employers could see an increase in the number of charges filed with the Agency.

While the exact impact of the EEOC’s Public Portal remains to be seen, employers should take this opportunity to:

  • Review and develop their internal reporting and complaint policies and procedures;
  • Ensure managers and supervisors have received appropriate training; and
  • Ensure key leadership and human resources representatives know what to do if they receive notice of a charge.

If you have any questions or would like more information, please contact Will Collins at [email protected].

Pa. Supreme Court To Reconsider If Settlement Can Trigger Malpractice Suit

Posted on: November 9th, 2017

By: Barry S. Brownstein

The Pennsylvania Supreme Court has agreed to reexamine the extent to which a settlement agreement can serve as the basis for a legal malpractice case. The case stems from Eileen McGuire’s efforts to sue a hospital after she was fired in July 2011 in what she claims was retaliation for her refusal to engage in multiple illegal or unethical acts. McGuire also claimed she was illegally targeted for termination on the basis of her age. The case concluded with a $7,000 settlement.

McGuire then proceeded to file a malpractice suit accusing her former attorneys for failing to include a claim for age discrimination and for failing to exhaust administrative remedies before the EEOC, claiming that such failures left her in a weakened position that forced her to accept a deficient settlement.

The case was dismissed on preliminary objections based on the Supreme Court’s 1991 decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, in which the justices declared they would “not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed.” The decision, however, did leave open the door for claims in which a plaintiff can prove that he or she was fraudulently induced to settle.

The Superior Court upheld the dismissal of McGuire’s case, rejecting arguments from McGuire that the negligence of her former attorneys had not been in negotiating the settlement but, rather, in failing to properly pursue her case against the hospital.

The continued viability of the Muhammad case that bars legal malpractice suits following the settlement of a lawsuit absent a showing of fraud on the part of the attorney will be analyzed by the Pennsylvania Supreme Court.

If you have any questions or would like more information, please contact Barry S. Brownstein at [email protected].

Employers Beware: Use Of Biometric Technology Can Expose You To Troublesome Lawsuits (Especially In Illinois)

Posted on: November 6th, 2017

By: William E. Collins, Jr.

The recent spike in claims against employers involving employee biometric data is a reminder that employers across the country should use caution before implementing technology utilizing employee biometric information.

How and Why Employers Use Biometric Technology
Employers are increasingly turning to technology utilizing biometric verification to ensure accurate time records and increase security. Biometric verification uses one or more unique identifiers from a person to verify their identity. These biometric identifiers include the use of fingerprints, finger geometry, and hand, face, or body scans. Employers use this technology to ensure accurate time records and increase security. Biometric verification combats “buddy punching”—where co-workers clock in or out for a fellow employee—and inaccurate time records because it requires the employee to be present in the workplace when the entry is made. By requiring the employee be physically present, the employer increases accuracy, security, and can restrict employee access to specified areas in the workplace. While this technology certainly has its advantages, it is not without risks to employers.

Flurry of Cases in Illinois
Since September of 2017, there have been more than 25 new lawsuits in Illinois State Court that allege violations of the Illinois Biometric Information Privacy (“BIPA”), which requires employers provide employees notice, obtain their consent, and clearly outline retention policies if using biometric identifiers.

Hyatt, Roundy’s, Zayo Group, Speedway, and Kimpton’s Hotels are a few targets of the most recent BIPA lawsuits. These companies allegedly violated BIPA where they required employees provide a fingerprint or finger geometry to clock in and clock out or to access company facilities without obtaining employee approval or outlining the scope and duration of use of the employee’s information.

The law imposes steep penalties for even unsuspecting employers where the liquidated damage provision of the statute is $1,000 per occurrence if the employer is merely negligent. And when the acts are willful or reckless, the damage is $5,000 per act. As you can imagine, this represents significant liability for employers and that potential liability quickly escalates when faced with the prospect of class action litigation. It was recently estimated that one company embroiled in one of the Illinois biometric fights faces the prospect of damages reaching $10 million.

Statutes Across the Country
While Illinois is the only state with a private right of action, several states place restrictions on an employer’s use of certain biometric information. For example, similar to Illinois, both Texas and Washington require that employers provide notice and obtain consent from employees prior to capturing biometric identifiers. In other states, certain actions involving biometric information are prohibited. In New York, most employers are prohibited from requiring fingerprinting as a condition of securing or continuing employment. While in California, employers are prohibited from sharing biometric data with third parties.

Even if your state does not regulate biometric information, you should be prepared because state legislatures are very active in this area. In 2017 alone, new legislation regulating biometrics was proposed in Alaska, New Hampshire, Connecticut, and Washington. Much of this legislation mirrored the statutes in effect in Illinois and Texas.

Federal Employment Laws are Implicated
Employers also must be cautious when implementing technology that utilizes biometric information because federal employment statutes may be implicated. Consider EEOC v. Consol Energy, Inc., where the EEOC brought a religious discrimination claim against an employer who implemented hand-scanning technology. There, the EEOC prevailed on behalf an employee who was declined accommodation for his religious belief that the hand-scanner used to clock in and clock out would provide information that could be used by the “Antichrist” to identify those with the “Mark of the Beast.”

In other instances, because eye, hand, or fingerprint scans potentially give medical information to the employer that alone, or through further analysis, could provide an employer information that they might otherwise not know, the use of biometric identifiers could bring ADA or GINA claims. For example, eye scans could reveal undisclosed eye disorders and diseases, finger print scans might reveal burns or tissue disorders, and hand-scans could reveal arthritis, scar tissue, or temperature distribution issues. As a result, employers implementing these programs must be careful to narrowly tailor their programs so that the information does not impact participation in benefit programs or that it does not otherwise lead to discrimination based on a disability.

The Bottom Line

Employers should be thoughtful and diligent when deciding to implement technology utilizing biometric identifiers as liability lurks for employers under both state and federal laws. Ultimately, employers should:

1. Carefully evaluate the decision to implement biometric verification technology and consult with legal counsel to better understand their obligations under state and federal law.
2. Develop a written policy and obtain written consent from employees when deciding to implement this technology.
3. Narrowly tailor what information is captured, how the information is stored, and who the information is shared with.

If you have any questions or would like more information, please contact William Collins at [email protected].

Federal Circuit Scorecard – Title VII & Sexual Orientation Discrimination

Posted on: October 13th, 2017

By: Michael M. Hill

A Georgia case is in the running to be the one the Supreme Court uses to resolve the question of whether Title VII of the Civil Rights Act of 1964 (which prohibits employment discrimination on the basis of sex and certain other characteristics) also includes discrimination on the basis of sexual orientation. The Supreme Court is widely expected to take on this issue at some point, but no one knows exactly when or which case it will be.

In Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), a former hospital security guard alleged she was harassed and otherwise discriminated against at work because of her homosexual orientation and gender non-conformity.  While the trial court dismissed her case, the Eleventh Circuit Court of Appeals partially reversed.  The Eleventh Circuit held that Evans should be given a chance to amend her gender non-conformity claim, but it affirmed dismissal of her sexual orientation claim.

The issue, in most federal circuits, is a distinction between (1) claims of discrimination on the basis of gender stereotypes (e.g., for a woman being insufficiently feminine), which the Supreme Court has held is discrimination based on sex, and (2) claims of discrimination based on sexual orientation, which all but one federal circuit has held is not discrimination based on sex.

At present, this is how things stand now:

  • In the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin), sexual orientation discrimination does violate Title VII.
  • In every other federal circuit, sexual orientation discrimination does not violate Title VII.
  • But no matter where you are, the U.S. Equal Employment Opportunity Commission (EEOC) takes the position that sexual orientation discrimination does violate Title VII.

To make matters more confusing, the full court of the Second Circuit (which covers New York, Connecticut, and Vermont) is considering whether to affirm its past position that sexual orientation is not protected by Title VII or to join the Seventh Circuit. In that case, the EEOC of course is arguing that sexual orientation is a protected category, but the U.S. Department of Justice has filed an amicus brief to argue that sexual orientation is not protected.  In the words of the Department of Justice, “the EEOC is not speaking for the United States.”

The long and short of it is that, until the Supreme Court weighs in, employers need to be mindful of the federal law as interpreted in their circuit, while also understanding that the EEOC enforces its position nationwide whether or not the local federal circuit agrees with it.

If you have any questions or would like more information, please contact Michael M. Hill at [email protected].