Tag: employment

United Auto Workers (UAW) and Volkswagen (VW) Efforts to Establish First Works Council in the U.S. Fails

Michael Best Logo

 

The United Auto Workers (UAW), which already represents most of the largest carmakers in the United States, was unsuccessful in its efforts to unionizeVolkswagen’s (VW) plant in Chattanooga, Tennessee. What makes this noteworthy is that leading up to the February 14th representation election, the German company was actually campaigning for the UAW not against it in an employer-union alliance seldom seen in this country.

While the “big three” American carmakers (General Motors, Ford, and Chrysler) are all unionized, foreign carmakers have avoided unionization by locating their plants in Southern states with strong Right to Work laws. Volkswagen, however, considers the creation of a so-called “works council” a crucial element of its business. Works councils are common under German law, and Volkswagen has established works councils at all its foreign plants, with the exception of Chattanooga and China.

Under these works councils, all workers in a factory regardless of position and whether they are unionized or not, help decide things like staffing schedules and working conditions, while the union bargains on wages and benefits. They also have the right to review certain types of information about how the company is doing financially, which means that they tend to be more sympathetic towards management’s desire to make cutbacks during tough financial times. Each Volkswagen plant throughout the world sends its delegates to a global works council that influences which products the company makes and where. This arrangement would have represented a new experience for the UAW, unlike its relationship with Chrysler, General Motors and Ford, which would have involved sharing control with the works council.

A tough question for Volkswagen and the UAW is whether a works council would be legal in the United States without a union. There is no provision in the NLRA for the kind of German-style works council Volkswagen seeks. Volkswagen’s best option for creating a works council would have been for its workers to accept UAW representation. Volkswagen must now rethink its options in seeking a way to create a works council. Options include talking with a different union that might be more popular with its workers or encouraging workers to organize their own independent union. Another option would be moving ahead without a union and risking an NLRB challenge.

After the UAW was defeated by a 712-626 vote in its bid to represent workers at the Volkswagen plant, the UAW promptly requested a new election claiming Tennessee politicians and outside organizations coordinated and vigorously promoted a coercive campaign to sow fear and deprive Volkswagen workers of their right to join a union. Senior state officials including United States Senator Bob Corker, TennesseeGovernor William Haslam, State House Speaker Beth Harwell, and State House Majority Leader Gerald McCormick, made statements in an effort to convince the workers to reject the UAW. The UAW’s alleges this was part of an unlawful campaign which included publicly announced and widely disseminated threats by elected officials that state-financed incentives would be withheld if workers exercised their right to join the UAW’s ranks. However, on February 25, 2014, a group of Volkswagen workers sought to intervene in the UAW‘s bid, and argued that the election results should stand.

Article by:

Of:

Michael Best & Friedrich LLP

Illinois Federal Court Issues Reminder That "100% Healed" Requirements Violate ADA (Americans with Disabilities Act)

vonBriesen

 

On February 11, 2014, an Illinois Federal District Court issued a decision reminding employers that “100% healed” return-to-work requirements violate the Americans with Disabilities Act (“ADA”). In EEOC v. United Parcel Service, Inc., the U.S. Equal Opportunity Commission (“EEOC”) filed a lawsuit alleging that United Parcel Service’s (“UPS”) “100% healed” requirement violated the ADA. UPS moved to dismiss the complaint, claiming that the EEOC could not state a claim that there was a violation of the ADA. The Court denied UPS’s motion and permitted the EEOC lawsuit to proceed.

UPS maintained a leave policy requiring employees to be “administratively separated from employment” after 12 months of leave. In 2007, an employee returned from a 12-month medical leave. After returning, the employee requested certain accommodations, including a hand cart. UPS refused to provide any accommodation. Shortly thereafter, the employee injured herself and needed additional medical leave. Instead of granting leave, UPS terminated the employee under its 12-month leave policy.

The EEOC alleged that UPS’s 12-month leave policy acted as a “100% healed” requirement because it functioned as a “qualification standard” under the ADA. UPS argued that the ability to regularly attend work was an essential job function and not an impermissible “qualification standard” and, therefore, not in violation of the ADA.

Although the Court conceded that regular job attendance is an essential job requirement, the court found that the lawsuit was not based on attendance requirements, but rather on the “100% healed” requirement that an employee must satisfy before returning to work. As a prerequisite to returning to work, the 12-month policy was a “qualification standard” and not an essential job function subject to accommodation. A “qualification standard” is “the personal and professional attributes, including the skill, experience, educational, physical, medical, safety and other requirements established by a covered entity as requirements an individual must meet in order to be eligible for the position held or desired.”

The court relied on the Seventh Circuit’s previous determination that a “100% healed” policy is per se impermissible because it “prevents individualized assessments” and “necessarily operates to exclude disabled people that are qualified to work.” A “100% healed” requirement limits the ability of qualified individuals with a disability to return to work. Thus, a “100% healed” acts as a prohibited “qualification standard” because it removes the opportunity for the employee to pursue reasonable accommodation, in violation of the ADA. Accordingly, the court denied UPS’s motion to dismiss and permitted the EEOC’s lawsuit to proceed.

Although this case does not provide a definitive answer to the EEOC’s lawsuit, it does provide a strong reminder to employers that “100% healed” policies violate the ADA. Employers should review their return to work policies to ensure that they do not contain “100% healed” requirements. When dealing with leave issues, employers also should remember to enter into the interactive process when necessary and balance obligations under federal, state and local disability and leave requirements, in addition to those created by contract or agreement.

Article by:

Geoffrey S. Trotier

Of:

von Briesen & Roper, S.C.

Federal Court Upholds Validity of 2011 H-2B Prevailing Wage

Jackson Lewis Logo

The Temporary Non-agricultural Employment 2011 H-2B Wage Rule for calculating the prevailing wage rates (“Rule”) has cleared one of the last hurdles to implementation by the U.S. Department of Labor, with a ruling by a federal appeals court in Philadelphia upholding the regulation.  The U.S. Court of Appeals for the Third Circuit held on February 5 that the DOL has authority to make rules regulating the H-2B program, that the Rule was lawfully promulgated and that it did not violate the Administrative Procedure Act or the Immigration and Naturalization Act.  The lawsuit was brought by employer associations that recruit H-2B workers and stand to face higher labor costs as a result of the Rule.  The case is La. Forestry Ass’n v. Sec’y United States DOL, 2014 U.S. App. LEXIS 2167 (3d Cir. Feb. 5, 2014).

The Rule (76 Fed. Reg. 3,452 (Jan. 19, 2011) (codified at 20 C.F.R. § 655.10)) eliminated the “four-tier wage methodology” in favor of the mean Occupational Employment Statistics (OES) wage for each occupational category, and established a wage calculation regime wherein the prevailing wage is the highest of the applicable collective bargaining agreement(s), the rate established under the DBA[???] or Service Contract Act, or the OES mean.  It also barred use of employer-submitted surveys if the prevailing wage can be determined based on OES data or the rates established under the DBA or SCA. According to DOL’s estimates, “the change in the method … will result in a $4.83 increase in the weighted average hourly wage for H-2B workers and similarly employed U.S. workers[,]” and a total annual transfer cost of $847.4 million.

This Third Circuit decision is welcomed by DOL, which has faced numerous court challenges in its efforts to promulgate new H-2B rules since 2008.  The 2011 H-2B Wage Rule was published in response to an August 2010 court order enjoining the agency from implementing its 2008 H-2B wage rule on the ground that it violated the APA, promulgated without seeking public comment.   The court ordered the DOL to promulgate new, APA-compliant rules.

Even though DOL published the 2011 Rule within the time ordered, its implementation has been held up by court action and by Congressional “appropriations concerns” denying DOL funding.  DOL continued to use its 2008 rule.  This was challenged and in March 2013, a federal district court vacated the 2008 wage rule and permanently enjoined the agency form implementing it (see www.globalimmigrationblog.com/2013/03).  The court gave the DOL 30 days to comply.  As a result, DOL and USCIS published a joint interim final rule in April 2013 that established a new methodology for calculating H-2B prevailing wages (seewww.globalimmigrationblog.com/2013/04), which DOL indicated would be effective only until the 2011 H-2B Wage Rule took effect.

Since Congress lifted the appropriations ban on the Rule when it enacted the DOL Appropriations Act, 2014 (see Pub. L. 113-76, Div. H, Title I (2014)), we anticipate DOL will now apprise the public of the status of H-2B prevailing wages and the effective date of the Rule by publishing a notice in the Federal Register.

The Third Circuit recognized its decision may lead to  a rift in the courts of appeals.   In Bayou Lawn & Landscape Servs. v. Sec. of Labor, 713 F.3d 1080 (11th Cir. 2013), the Atlanta court affirmed an injunction barring implementation of the interim rule preliminarily, finding DOL had no rulemaking authority over the program.  The Third  Circuit cautioned, however,   that Bayou may not be the last word on the subject from its sister circuit: “The three-member panel in Bayou opined only on whether the District Court abused its discretion…, not on whether the DOL actually has that authority or not….”

Article by:

Otieno B. Ombok

Of:

Jackson Lewis P.C.

 

The NLRB Revives Controversial Expedited Election Rules – National Labor Relations Board

Michael Best Logo

On February 6, 2014, the National Labor Relations Board (NLRB) reissued its controversial rules aimed at expediting union elections in the workplace. This rule, referred to as the “Ambush Election Rule,” could limit an employer’s right to express its views to employees and respond to union statements. The proposed rules mirror the NLRB’s June 2011 proposal, which ultimately was struck down by a district court in May 2012.

Analogous to the June 2011 proposal, the NLRB’s most recent proposal seeks to significantly impact the current union election process. The proposed reforms are aimed at shortening the election cycle from the current median of 38 days from petition to election to as little as 10 to 21 days. The proposed reforms also would move resolution of voter eligibility determination to after the election; reduce the NLRB’s review of representation cases; expand employer disclosure of employee contact information (including e-mail addresses); and allow more electronic filing with the NLRB.

Despite reducing the amount of time an employer has to communicate its message or rebut the union’s statements, NLRB Chairman Mark Gaston Pearce has stated the proposed rules are intended to “improve the process for all parties.” The NLRB is likely to issue a final rule governing union elections later this year.

Action Steps?

The NLRB has issued a proposed rule, and by law, will allow for public comments through April 7, 2014. Employers may direct comments regarding the proposed reforms to the NLRB here. Additionally, the NLRB will hold a public hearing on the proposed rules in Washington D.C. during the week of April 7, 2014, and employers may voice their concerns at the forum.

Finally, employers should consider conducting a vulnerability audit to identify any concerns that can be addressed now (rather than after a final rule is put in place) and should provide supervisors and management with training so they are prepared to address any potential NLRB election situation.

Article by:

Of:

Michael Best & Friedrich LLP

Office Romances: 3-Part Series on How to Shield Your Company from Liability Part 2

GT Law

 

More than ever, employers are facing serious claims arising from office romances.  Part 1of this three-piece series covered the potential claims, charges and lawsuits that may arise from workplace relationships.  In this installment, learn why it is imperative to adopt a company policy addressing fraternization.  Part 3 will address tips for employers to mitigate potential liability.

What Does Company Policy Say?

With Valentine’s Day around the corner, now is a good time for employers to update or create a policy governing dating among workers.  While some policies prohibit romantic relationships altogether, many employers recognize that employees will date each other regardless of policy.  In fact, they might “sneak around” to avoid violating the policy, which could create even more tension if the relationship is discovered or known only to a select few.  Moreover, strict no-dating policies may be difficult to implement and enforce, as they may not clearly define the conduct that is forbidden (e.g., does the policy prohibit socializing, dating, romantic relationships, or something else?).

Some policies interdict dating among management and staff, while others specify that there is to be no fraternization with outside third parties to avoid conflicts of interest or the appearance of impropriety.  Still, other organizations mandate that employees who date one another voluntarily inform the company about their relationship.

In such cases, the notification policies direct employees to report their dating relationships to Human Resources, the EEOC officer, or a member of management, and they ask employees to sign a written consent regarding the romantic relationship.  While this type of policy may seem intrusive, these documents are drafted to protect employers from unwanted complaints of future sexual harassment or retaliation.

When asking employees to sign consents, you should again advise them about the company’s sexual harassment policy and remind them about ramifications of policy violations.  Document that the employees entered into the relationship voluntarily, were counseled and – if/when the relationship ends – include a memo in their respective personnel records that the relationship ended, and the employees were reminded about the company’s sexual harassment policy.  You should require the dating parties to make certain written representations to shield the company from future claims:

  • The individuals have entered the relationship voluntarily and the relationship is consensual.
  • The employees will not engage in any conduct that makes others uncomfortable, intimidated, or creates a hostile work environment for other employees, guests, or third parties.
  • The employees do not and will not make any decisions that could impact each other’s terms and conditions of employment.
  • The employees will act professionally toward each other at all times, even after the relationship has ended.
  • The relationship will not cause unnecessary workplace disruptions or distractions or otherwise adversely impact productivity.
  • The employees will not retaliate against each other if/when the relationship ends.

Stay tuned for Part 3 for steps to take now to defend potential claims of discrimination and harassment.

 

Article by:

Mona M. Stone

Of:

Greenberg Traurig, LLP

Office Romances: 3-Part Series on How to Shield Your Company from Liability Part 1

GT Law

Love is in the air – which could bring claims of sexual harassment and discrimination.  As Valentine’s Day approaches, employers should be mindful of office romances:

  • Statistics show that more than 20% of married couples met at work, yet nearly half of those employees reported that they did not know if their company had a policy on office romances.
  • According to a recent survey by Monster Worldwide, 59% of employees admitted that they have been involved in an office romance.
  • An additional 64% answered that they would be willing to do so if the opportunity arose.
  • Yet, 75% of employers do not have a policy regarding workplace relationships.
  • AshleyMadison.com (a dating site for married people looking to cheat – yikes!) reports that 46% percent of men and 37% percent of women have had an affair with a co-worker. Among these cheaters, 72% percent of women and 59% percent of men say that they had their first encounter with the affair partner at a company holiday party … which means now is the time for employers to pay attention!

In this three-part series, learn (1) the potential risks to employers from workplace relationships, (2) how to draft an office romance policy, and (3) what steps to take to head off potential litigation.  Part I addresses the negative consequences that office romances can pose to unprepared employers.

What’s the Harm?

While consensual office relationships are more commonplace than in the past, they can trigger business and legal headaches for employers when the relationship fizzles or is no longer consensual.  Moreover, fellow employees may feel resentful, jealous, uncomfortable, or intimidated (especially in relationships between a supervisor and a subordinate), leading to complaints of sexual harassment, discrimination, or retaliation.

Importantly, claims may be brought not only by the individuals in the relationship, but even by third parties.  Complaints of “paramour favoritism” are on the rise and are being filed by employees who allege they are overlooked due to preferential treatment towards a co-worker who is engaged in a romantic relationship with the boss.  While courts differ on whether such claims are meritorious, turning a blind eye to such relationships may result in business interruption and liability.

In 2011, for example, the EEOC reported that 11,364 charges of sexual harassment were filed, and 16.3% of those were filed by men.  These charges are quite costly to employers – the EEOC recovered over $52 million in damages for sexual harassment claims in 2011.  Employers might not be able to prevent love in the office, but you can take action to mitigate potential liability.  An important initial measure is to draft a good policy depending on your company’s size, structure, business goals, and culture.  Make sure that, if you implement an office dating policy, you  enforce it uniformly and take appropriate and equal action for violations of the policy.

Watch for installments 2 and 3 to learn the dos and don’ts when drafting an office romance policy and tips for employers to avoid liability.

Article by:

Mona M. Stone

Of:

Greenberg Traurig, LLP

Philadelphia Enacts Pregnancy Accommodation Law

Morgan Lewis

 

An amendment to the city’s ordinance enhances protections for nondisabled employees affected by pregnancy or childbirth and imposes greater accommodation requirements on employers.

On January 20, Philadelphia Mayor Michael Nutter signed an amendment[1] to the city’s Fair Practices Ordinance (Chapter 9-1100 of The Philadelphia Code), expressly banning discrimination based upon pregnancy, childbirth, or a related medical condition and imposing new workplace accommodation requirements on Philadelphia employers. The amendment places Philadelphia among a growing number of jurisdictions that require employers to provide workplace accommodations to employees who are “affected by pregnancy,” regardless of whether those employees are “disabled.”

Impact of the Amendment

Unlike its federal and state counterparts—the Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Pennsylvania Human Relations Act—Philadelphia’s amended ordinance actually compels employers to make reasonable workplace accommodations for female employees “affected by pregnancy”—i.e., women who are pregnant or have medical conditions relating to pregnancy or childbirth—regardless of whether those employees have been “disabled” by the pregnancy. The ordinance identifies a number of possible accommodations that may be required, including restroom breaks, periodic rest for those whose jobs require that they stand for long periods of time, special assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

This new law imposes a significant burden on employers, requiring that they grant the requested accommodations unless doing so would impose undue hardship on the operation of the employers’ businesses. The factors to be considered in the undue hardship analysis include the following: (a) the nature and cost of the accommodations; (b) the overall financial resources of the employer’s facility or facilities involved in the provision of the reasonable accommodations, including the number of persons employed at such facility or facilities, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer; (c) the overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type, and location of its facilities; and (d) the type of operation or operations of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness or administrative or fiscal relationship of the facility or facilities in question to the employer.

Perhaps the most significant aspect of the amendment is that it extends privileges to employees affected by pregnancy that are unavailable to other employees, including many disabled employees. For example, the law requires an employer to consider job reassignment and job restructuring for pregnant employees, even though these types of accommodations are generally not required for disabled employees under state or federal law. As such, employers with operations in Philadelphia (along with those in other jurisdictions that have recently passed heightened pregnancy accommodation laws like California,[2]Maryland,[3] New Jersey,[4] and New York City[5]) should revisit their existing reasonable accommodation policies to ensure that they are providing required accommodations for pregnant workers—even those who are healthy and not incapacitated by the pregnancy.

From a litigation perspective, the law specifies the affirmative defenses that will be available to employers facing claims under the amended ordinance. In addition to the undue-burden defense described above, an employer will have an affirmative defense if it can show that the employee “could not, with reasonable accommodations, satisfy the requisites of the job.” This language is important because it will allow employers to continue managing the performance of pregnant workers who, even with accommodation, simply cannot perform their jobs. Nonetheless, the impact of this affirmative defense remains to be seen given the amendment’s language suggesting that job restructuring and reassignment may be required accommodations.

Employees aggrieved by a violation of the amended ordinance are entitled to the same remedies that are available for other unlawful employment practices—including injunctive or other equitable relief, compensatory damages, punitive damages, and reasonable attorney fees. Additionally, certain factual scenarios, such as a failure to properly respond to a request for accommodations (e.g., lactation breaks or nursing an infant), may trigger a pregnancy accommodation cause of action, as well as causes of action under the Fair Labor Standards Act and/or Title VII.[6]

As mentioned above, the amendment places Philadelphia squarely in the middle of a significant legislative trend that has been gaining momentum. In the last 18 months, California, Maryland, New Jersey, and New York City have passed similar pregnancy accommodation laws. Several other jurisdictions are, or will soon be, considering comparable legislation. The West Virginia House of Representatives unanimously passed a similar bill on February 5, 2014, and Pennsylvania legislators announced in December 2013 that they will be introducing Pennsylvania’s Pregnant Workers Fairness Act in the near future. In addition, a federal version of the Pregnant Workers Fairness Act was introduced in the U.S. Senate in May 2013 but stalled in committee. Several other states—including Alaska, Connecticut, Hawaii, Illinois, Louisiana, Michigan, New Hampshire, and Texas—already require some type of pregnancy accommodation.

Notice Requirement

The new law requires that Philadelphia employers provide written notice—in a form and manner to be determined by the Philadelphia Commission on Human Relations—by April 20, 2014. The notice must be posted conspicuously in an area accessible to employees.

Moving Forward

For employers with operations in Philadelphia, the amendments to the Fair Practices Ordinance may signal that now is the time to revisit or revamp employee handbooks and train human resources and benefits employees on the new requirements in this area. Specifically, the amended ordinance will require most Philadelphia employers to overhaul their reasonable accommodation policies and train human resources professionals and managers regarding when the interactive process is triggered for employees affected by pregnancy, what steps must be followed to ensure effective engagement in that process, and when accommodations must be granted for such employees.

[1]. View the amendment here.

[2]. See our December 28, 2012 LawFlash, “New California Disability Regulations to Become Effective December 30,” available here.

[3]. See our July 1, 2013 LawFlash, “Maryland Enacts Three New Employment Laws,” available here.

[4]. See our January 10, 2014 LawFlash, “New Jersey Assembly Passes Pregnancy Discrimination Bill,” available here, and our January 27, 2014 LawFlash, “New Requirements for New Jersey Employers,” available here.

[5]. See our September 27, 2013 LawFlash, “New York City Offers Greater Protections for Pregnant Workers,” available here.

[6]. See our June 12, 2013 LawFlash, “New Developments Surrounding Lactation Discrimination,” available here.

Article by:

Sean P. Lynch

Of:

Morgan, Lewis & Bockius LLP

The Affordable Care Act—Countdown to Compliance for Employers, Week 47: The Reporting Conundrum

MintzLogo2010_Black

 

The Affordable Care Act establishes three new, high-level, reporting requirements:

  • Code § 6051(a)(14)

Employers must report the cost of coverage under an employer-sponsored group health plan on an employee’s Form W-2, Wage and Tax Statement;

  • Code § 6055

Entities that offer minimum essential coverage (i.e., health insurance issuers, certain sponsors of self-insured plans, government agencies and other parties that provide health coverage) must report certain information about the coverage to the employee and the IRS; and

  • Code § 6056

Applicable large employers must provide detailed information relating to health insurance coverage that they offer.

The W-2 reporting rules have been in effect for a while, and I do not address them in this post. This post instead addresses Code §§ 6055 and 6056, which were originally slated to take effect in 2014, but which were subsequently delayed by one year in IRS Notice 2013-45.

The Treasury Department and IRS issued proposed regulations under both rules on September 30, 2012. (For an explanation of the proposed regulations, please see our October 21, 2013 client advisory. Although garnering far less attention than the Act’s pay-or-play rules, the rules under newly added Code §§ 6055 and 6056 should not be overlooked. Both provisions require a good deal of specific information about covered persons and the particular features of the group health plan coverage such persons are offered. Required reports must be furnished to both the government and covered individuals.

  • Under Code section 6055, plan sponsors must report to the IRS who is covered by the plans and the months in which they were covered. Plan sponsors must also provide this information to the employees who are enrolled in their plans along with additional contact information for the plan.
  • Under Code section 6056, applicable large employers must report to the IRS, and provide to affected full-time employees, information that includes:

(i) The employer’s contact information;

(ii) Whether the company offered minimum essential coverage to full-time employees and their dependents;

(iii) The months during which coverage was available;

(iv) The monthly cost to employees for the lowest self-only minimum essential coverage;

(v) The number of full-time employees during each month; and

(vi) Information about each full-time employee and the months they were covered under the plan.

Absent regulatory simplification, the costs of compiling, processing, and distributing the required reports will be substantial. But the regulators are in a difficult position, since they must remain true to the requirements of the law. The proposed regulations do offer some suggestions for simplification. For example:

  • Employers might be permitted to report coverage on IRS Form W-2, rather than requiring a separate return under Section 6055 and furnishing separate employee statements. But this approach could be used only for employees employed for the entire calendar year and only if the required contribution for the lowest-cost self-only coverage remains stable for the entire year.
  • The W-2 method could also be extended to apply in situations in which the required monthly employee contribution is below a specified threshold (e.g., 9.5% of the FPL) for a single individual, i.e. the individual cannot be eligible for the premium assistance tax credit.
  • Employers might be permitted to identify the number of full-time employees, but not report whether a particular employee offered coverage is full-time, if the employer certifies that all employees to whom it did not offer coverage during the calendar year were not full-time.

Industry comments filed in response to the proposed regulations have seized these suggestions to ask for further relief. Some commenters suggested replacing the reporting process with a certification process under which an employer could simply certify that it has made the requisite offer of coverage. Others have asked that information be provided to employees only on request, on the theory that not all employees will need to demonstrate that the employer either failed to offer coverage or that the coverage was either unaffordable or did not constitute minimum value.

While many of the comments submitted in response to the proposed regulations were both thoughtful and practical, many are also difficult to square with the terms of the statute. As a result, the most likely outcome is that the final rules under Code §§ 6055 and 6056 will look a lot like the proposed rules—which look a lot like the statute.

Article by:

Alden J. Bianchi

Of:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

4th Cir. First to Apply "Disability" Definition Under ADAAA – ADA Amendments Act of 2008

Odin-Feldman-Pittleman-logo

On January 23rd, in a ground-breaking decision under the ADA Amendments Act of 2008 (“ADAAA”), the United States Court of Appeals for the Fourth Circuit held that an injury that left the plaintiff unable to walk for seven months and that, without surgery, pain medication, and physical therapy, likely would have rendered the plaintiff unable to walk for far longer can constitute a disability under the Americans with Disabilities Act.  The Fourth Circuit in Summers v. Altarum Institute, Corp. indicated that it is the first appellate court to apply the ADAAA’s expanded definition of “disability.”

The Court reversed a District Court’s dismissal of the plaintiff’s case pursuant to a Rule 12(b)(6) motion.  The U.S. District Court for the Eastern District of Virginia based its dismissal of the plaintiff’s disability-based discharge claim on its view that the plaintiff’s impairment was temporary and therefore not covered by the Americans With Disabilities Act. In its reversal, the Fourth Circuit held that the plaintiff “has unquestionably alleged a ‘disability’ under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion.”

Article by:

Timothy M. McConville

Of:

Odin, Feldman & Pittleman, P.C.

The Seventh Circuit Breaks from the Pack; Prohibits Employers from Challenging the EEOC’s Pre-Lawsuit Conciliation Efforts

Michael Best Logo

 

When the United States Equal Employment Opportunity Commission (EEOC) makes a finding of reasonable cause after its investigation of a discrimination charge, Title VII of the Civil Rights Act instructs the EEOC to “…endeavor to eliminate any such unlawful employment practice by informal methods of conference, conciliation and persuasion.” The statute also provides that the EEOC may proceed to filing a lawsuit against the employer only if it “…has been unable to secure from the Respondent a conciliation agreement acceptable to the Commission.” In EEOC v. Mach Mining LLC, No. 13-2456, the Seventh Circuit Court of Appeals (which covers Illinois, Indiana and Wisconsin) recently held that employers may not challenge the EEOC’s pre-lawsuit conciliation efforts as an affirmative defense to the lawsuit. By its decision, the Seventh Circuit broke away from the majority of Federal Courts of Appeal. The EEOC called the ruling in Mach Mining a “landmark” victory in its press release.

As part of its recent initiatives, the EEOC has been very aggressive in filing lawsuits and in the past few years has suffered setbacks with many courts critical of the Agency’s pre-lawsuit investigatory and conciliation efforts. The defense tactic of raising the failure of the EEOC to engage in good faith conciliation efforts as an Affirmative Defense has been widely used by employers’ attorneys in discrimination lawsuits brought by the EEOC. In many cases the EEOC might fail to even attempt face-to-face negotiation, refuse to provide information requested by the employer to assist in conciliation, or simply make a “take it or leave it proposal” before rushing to the courthouse to file a lawsuit.

The essence of the Court’s decision is that conciliation is an informal process in which the EEOC is to “try” to obtain a settlement acceptable to it. The Court also found that Title VII gives the EEOC “sole discretion” to determine whether a conciliation proposal is acceptable and further noted that Title VII is silent as to the standards by which the adequacy of the Agency’s conciliation efforts can be measured. Finally the Court found that permitting the employer to raise inadequate conciliation efforts as a defense to a discrimination claim would undermine the enforcement goals of Title VII. According to the Court, employers could drag out discrimination litigation by turning “what was meant to be an informal investigation into the subject of endless disputes over whether the EEOC did enough before going to court.” At least in Illinois, Wisconsin and Indiana, the EEOC’s methods, the negotiation process and whether the EEOC has acted in good faith in attempting to resolve a charge before filing a lawsuit no longer matters.

Although it is not yet known whether Mach Mining will petition the United States Supreme Court to resolve the split between the Seventh Circuit and the majority of other Courts of Appeal, it is likely this issue will someday be decided by the Supreme Court.

Article by:

Steven J. Teplinsky

Of:

Michael Best & Friedrich LLP