Jim’s New Book, “Walking on Eggshells”

August 30, 2013

Walking on Eggshells, Managing Minorities in the Workplace, written by James William Potts, is now available! As you may recall, this book is the first in the series of four in the “Walking on Eggshells” series. The second should be out next year. To purchase your book, and one for your managers, please go to http://www.pottsandassociates.com and click on the link which will take you to the appropriate site for purchase.

In addition, please mark your calendar for Saturday, October 26, 2013. On that date Jim will be hosting a book signing event at the Altadena Town & Country Club from 1 p.m. – 4 p.m. If you purchase your book before the event, bring it for Jim to sign and enjoy the refreshments. On the other hand, if you prefer, you can purchase your book at the book signing.

Thank you for your ongoing support!

Employer’s Actions After An Employee Leaves, Now Faced With A Retaliation Claim

August 27, 2013

This case is a valuable lesson about what can go wrong when a dispute between an employer and a former employee goes public (which is why we encourage employers not to disclose any information about a former employee unless under very limited circumstances).

John Ray, and African-American, is a former associate of Boston white-shoe law firm Ropes & Gray. When the firm passed him over for partner, he first filed an EEOC discrimination charge, and then a lawsuit, claiming that the firm had illegally passed him over for partner. After Ray leaked to a legal blog a copy of an EEOC probable-cause finding on his retaliation claim, the blog sought comment from Ropes & Gray. The firm responded by providing a copy of an earlier EEOC no-probable-cause finding—which the blog published, and which included details about Ray’s performance reviews and an internal investigation into Ray’s alleged criminal conduct while at the firm. This was a mistake. They provided too much information.

In the subsequent litigation, Ray claimed that the release of the EEOC’s no-probable-cause finding was a sufficient adverse action to support a claim for retaliation under Title VII. The district court agreed, although I disagree, that releasing only the EEOC’s no-probable-cause finding would be so problematic.

Title VII prohibits an employer from responding to protected activity by taking an action that would “dissuade a reasonable worker from making or supporting a charge of discrimination.” The threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a complaint against his employer.
Ropes & Gray did not start the public war of words with its former employee. Ray took his issues public first. An employer should have the right to defend itself in the sphere of public opinion. If the employer fired the first publicity shot, I could better understand a finding of retaliation. Merely responding to a smear that someone else started, however, should not be viewed as an adverse action, no matter how wide Title VII’s retaliation lens might be.

Nevertheless, this case illustrates that retaliation comes in all shapes and sizes, and employers must act with extreme care when dealing with any employee who engaged in protected activity. If something such as responding to publicity started by a disgruntled ex-employee can constitute an adverse action, the scope of what acts fall outside Title VII’s definition of “adverse” is getting smaller and smaller, which makes these claims all the more dangerous for employers.

So, what does all of this mean? The employer won on the issue of discrimination but now faces a retaliation claim that is presently moving forward. As we have discussed in our seminars retaliation is, and has been, in a protected class. You cannot wear your emotions on your sleeves. This employee was gone and because of comments he had made the employer reacted and is now in litigation. When they are gone, move on. Forget whatever they say after they have left.

EEOC Using Their “Investigatory Powers” To Do Mass Emails To Current & Former Employees

August 19, 2013

Employers should be aware that, according to a recent lawsuit filed by an employer, the Equal Employment Opportunity Commission (EEOC) has engaged in a shocking new tactic as part of its “investigatory” power. Specifically, under the guise of its “investigation” into a claim of alleged unlawful conduct on the part of the employer, the EEOC, without any advance notice, directly emailed over 1100 of the employer’s employees (at their employer’s email address) in an attempt to develop class members for a potential class action against the employer.
In response to the EEOC’s conduct, Case New Holland Inc. and CNH America LLC sued the EEOC on August 1, 2013 seeking injunctive relief and attorneys’ fees, claiming that the mass email interfered with its business operations, constituted contact with represented parties in violation of the Rules of Professional Conduct, and denied CNH the right to be present during communications with its employees. The lawsuit further alleges that (1) no rule or regulation authorized the mass email, (2) the investigation was biased and violated statutory and constitutional rights, (3) the action by the EEOC constituted a violation of the EEOC compliance manual, (4) violated the Fourth Amendment of the Constitution of the United States, and (5) violated the Fifth Amendment of the Constitution of the United States.

Employers should be concerned that even long after an investigation appears to have concluded, the EEOC could undertake such a tactic. The Complaint alleges that the EEOC investigation of CNH commenced in 2011 and that over the course of the investigation, CNH cooperated by providing, among other things, approximately 5,707 pages of documents and over 600,000 electronic records to the EEOC. The vast information was provided to the EEOC in January 2012 and, without any warning, about 18 months later on the morning of June 5, 2013, the EEOC made its direct contact with hundreds of CNH’s employees.

If you are being investigated by the EEOC this could happen to you. So if you receive a charge of discrimination or once you learn of a potential investigation, contact us immediately or counsel for assistance in trying to resolve the issues as quickly as possible.

Four New Employment Laws Pending

August 12, 2013

Recouping Attorney fees

Senate Bill 462 will amend the Labor Code to state that an action brought for the non-payment of wages, fringe benefits or health and welfare or pension fund contributions, the prevailing employer may only be awarded attorney fees and costs if a court determines that the employee brought the action in bad faith. This bill has been passed by the California Senate and is currently pending in the Assembly.

Minimum Wage Clarification

Assembly Bill 10 would amend the California Labor Code to increase the minimum wage in California. There appears to be some confusion as to whether this bill has already cleared all of the hurdles. My understanding is that it has been passed in the Assembly and is pending in the Senate. However, if it does pass, the effective dates are as follows:

January 1 2014-$8.25
January 1, 2015-$8.75
January 1, 2016 $9.25

After 2016, any increases would be based on the California Consumer Price Index. In addition, and without any surprise, the Bill also includes a prohibition against any future “downward adjustments.”

Familial Status-A new protected category

Senate Bill 404 will amend the California Fair Employment & Housing Act to add “familial status” as a new protected category. The definition is basically any individual who provides “medical or supervisory” care to a family member (child parent, spouse, domestic partner, parent-in-law, sibling, grandparent, or grandchild. This bill has passed the Senate but is pending before the Assembly. Another protected category! That’s all we need.

Another Pending Issue

I heard there is another pending issue that you should be aware of. The California Legislatures are now considering a “forced savings plan” for employee whereby 3% of their gross compensation will be taken out of their checks and put into a savings/pension fund that will be managed by the state (who couldn’t manage their own!). I have not received all of the information on this but keep an ear to the ground—it’s coming!

Temporary Employees Can Be Eligible For FMLA Benefits

August 6, 2013

We regularly receive calls regarding utilize temporary employees, some of whom are hired to fulltime regular position. The question normally posed is whether the time they worked as a temp (through an agency) counts toward the 12-month and 1,250 hour eligibility requirements of the FMLA.
As you know, an employee is eligible to take FMLA leave when, among other things, he/she has worked for the employer for 12 months (which, of course, need not be consecutive) and worked 1,250 hours in the previous 12-month period.

According to the Department of Labor (DOL), the time worked as a temporary employee does indeed count toward the 12-month service and 1,250 hour requirement. In one short sentence in the FMLA regulations, the DOL sums up its position:

“Joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a secondary employer.”
This position is only further cemented by a long-standing 1994 DOL opinion letter, in which the agency confirmed that “the time that the employee was employed by the temporary help agency would be counted towards the eligibility tests” under the FMLA. I wish it weren’t so, but the courts generally have agreed with DOL’s position. Mackey v. Unity Health System (finding that, for FMLA eligibility purposes, “an employee’s term of employment begins once assigned by the temporary agency, rather than when hired as a permanent employee”).

No wiggle room here, as far as the DOL is concerned. As to FMLA eligibility, a temp employee apparently is no different than a regular employee on day one. No 326-point joint employer test required.

Since we’re on the topic, one additional point is worth noting with respect to temporary employees: keep in mind that the primary employer (i.e., the temp agency) is responsible for providing the required FMLA notices, administering FMLA leave and maintaining health benefits. The secondary employer (i.e., the one receiving the employee’s services) becomes responsible for these obligations only after the individual becomes an employee of the secondary employer on a fulltime regular basis.