Wednesday, November 26, 2014

AutoZone Pregnancy Discrimination Suit Results in $185 Million Punitive Award

Rosario Juarez is a former employee of AutoZone. She began her employment in 2000 as a customer service representative and within a year was promoted to parts sales manager. With that position, her upward trajectory was allegedly halted due to a “glass ceiling” that prevented women from promotion. It was Ms. Juarez’ contention that district managers were instructed to get rid of women in management positions. Ultimately however, Ms. Juarez was promoted and she pointed to Human Resources complaints as the reason.

Ms. Juarez became pregnant in 2005. According to Ms. Juarez, her boss repeatedly suggested that she step down because once she had a child, she would no longer be able to handle her job duties. She refused. However, when she returned following giving birth to her son, she was demoted back to parts sales manager. AutoZone claimed that the demotion was due to poor work performance. Ms. Juarez claimed that she was then asked to work much longer hours, ordered to redo work without reason while being humiliated and yelled at in front of other employees.

When her complaints went unheeded, Ms. Juarez filed a lawsuit. Within a month of giving her deposition, Ms. Juarez was fired. The company’s basis for the termination was $400 that went missing from the register. The loss prevention officer who handled the investigation claimed that Ms. Juarez was never suspected of stealing the money and that the company was targeting her. That officer also has a gender suit pending against AutoZone. The jury awarded Ms. Juarez $872,000 in compensatory damages and $185 million in punitive damages. AutoZone issued a statement that it plans to appeal.

Tuesday, November 25, 2014

NLRB and EEOC: Caution While Using Social Media

The NLRB general counsel and the EEOC commissioner were recently on a panel together. During the course of that panel, they stated that managers are permitted to look at an applicant’s personal details or opinions that are posted online. However, they also stated that management is not permitted to use those details in deciding whether to hire. That distinction may be tricky for employers.

The NLRB explained that “The issue is obviously going to be whether the person who didn’t get the job…suspects the reason he didn’t get the job [was because he was pro-union] and files [a] charge.” When asked a hypothetical about a manager who “sanitized” the information for the hiring person, the NLRB responded that the standard for allowing knowledge to be imputed to others was interpreted very liberally under the NLRA.

The panelists also encouraged caution while monitoring the activities of current employees, noting that most posts by employees about their working conditions were unlikely to be praise. Typically, employees use such mediums to air their grievances. Employers were cautioned against taking the position that employees are not permitted to be critical on social media.

Monday, November 24, 2014

Unseen and Unheard Harassment of Others Admissible

A female auto mechanic filed a sexual harassment suit against her employer Uncle Ed’s Oil Shoppes, Inc. This female auto mechanic, Vera Schmidlin, identified sexual comments and conduct (including repeated unwanted touching) that created a hostile and sexually offensive work environment.

Ms. Schmidlin sought to introduce the deposition testimony of a former assistant manager at Uncle Ed’s. This former manager had testified about sexually offensive conduct, such as gestures and comments, made by various male employees that were directed at Ms. Schmidlin but which she had not seen or heard. Ms. Schmidlin had learned about this conduct after the fact but much of it had been reported to her during her employment. The employer sought to prevent this deposition testimony from the trial as well as Ms. Schmidlin’s knowledge of other employees who claimed to have experienced harassment.

A Michigan district court ruled that such evidence would be admissible. This ruling was based on a prior Sixth Circuit Court of Appeals decision which found that a jury may consider similar acts of harassment that the employee learns during her employment, even if it was not directed at her. The underlying philosophy of this ruling is that the information could still contribute to creating a hostile and sexually offensive work environment and the employer’s knowledge of such conduct. The district court suggested that the evidence could show constructive and/or actual knowledge by the employer based on the pervasiveness and openness of the behavior.

Thursday, November 20, 2014

Yes, There is a Limit: NLRB Rules For Employer On Facebook Post

The NLRB recently considered a dispute involving two employees who had a Facebook rant against their employer. The employer was a teen center providing after school activities for high school students in Northern California. All employees at the teen center were asked to provide the “pros and cons” of working at the center during a year-end meeting. Apparently 8 pros and 23 cons were submitted and perceived as taken personally by management.

Two of the employees went on Facebook to complain about the center’s supervisors and discuss their plans of insubordination. Plans identified online included: refusing to ask for permission before organizing activities; disregarding specific school district rules; undermining leadership; and neglecting their job duties. Specific comments made about these plans were: planning “field trips all the time to wherever the f… we want,” teach the kids how to graffiti up the walls” and “f… it up” in reference to the teen center. The Center was given a screen shot of the conversation and quickly rescinded the offers to re-hire the two employees. The Center asserted its concern for the planned insubordination, which could potentially endanger the teen participants.

The NLRB found that the comments made by the employees were not protected by the NLRA. The NLRA protects the right of employees to act together to try to improve their pay and working conditions. This conversation was held to be “so egregious as to take it outside the protection of the Act, or of such a character as to render the employee[s] unfit for further service.”  The magnitude and detailed list of planned insubordination was considered so egregious as to take it outside the law’s protection.

Wednesday, November 19, 2014

11th Circuit Puts A Limit on EEOC’s Subpoena Power

In EEOC v. Royal Caribbean, the EEOC received a charge of discrimination from a former Royal Caribbean employee. The employee was an Argentinean national who had been fired because he was diagnosed with HIV and Kaposi Sarcoma. Royal Caribbean admitted that it had fired the employee because of his illnesses. However, the cruise ship company insisted that the ADA did not apply to a foreign national who worked on a ship that operated out of the Bahamas. Furthermore, the Bahamas Medical Authority’s standards mandated termination because of the employee’s illnesses.

The EEOC issued a subpoena that sought a list of all employees who were fired for a medical reason for the year before the charge, including detailed information about each employee such as personnel files and contact information. The EEOC’s subpoena also sought the same information for individuals not hired for medical reasons. The magistrate and district court refused to enforce the subpoena.

The 11th Circuit Court of Appeals outlined the EEOC’s right to inspect and copy all evidence that is “relevant to the charge under investigation.” However, the Court concluded that the subpoena did not attempt to gain information regarding the charging party. Rather, the EEOC was trying to discover a “potential class of employees or applicants who suffered from a pattern or practice of discrimination rather than fleshing out [the Charging Party’s] charge. The EEOC must make some showing that the “requested information bears on the subject matter of the individual complaint.” The EEOC argued for a much broader power to investigate and uncover other potential violations and victims of disability discrimination. In rejecting this argument, the Court stated that the EEOC is limited to evidence of the individual charge and what contested issues that are relevant to it; and not to issues that may be relevant to future unknown charges that may be brought by others. The Court also noted that the burden on Royal Caribbean to gather all the information needed to respond to the subpoena outweighed the “limited need” for the information by the EEOC.

Tuesday, November 18, 2014

Great Maternity Benefits May Mask Gender Bias

A recent survey by the consulting firm Mercer revealed an interesting correlation between comprehensive female benefits and job advancement. Many of the companies with wonderful benefits were the companies with the slowest advancement of women to the executive ranks.

The 164 organizations included in the survey were questioned about their human resources practices as well as their offered benefits. Questionnaires were answered and Mercer was permitted to review internal employee data.  Flexible working arrangements and maternity leave benefits were more likely to be offered in companies with higher current numbers of women yet these companies also had a much slower rate of promotion of women to the executive level.

Mercer proffers that often companies offering full benefits then feel complacent, forgetting that those benefits do not constitute actions to correct gender bias. Proactive management is needed to ensure that these women get back on track for promotion. Without active management of the employees taking advantage of these benefits and coaching them upon return, there are unintended consequences for diversity in the executive ranks according to Mercer. Another key to offering such benefits is whether they are truly valued by the organization. If such programs are formally offered but informally disparaged, then using the benefits negatively impacts women. All levels of management must be on board with the policies.

Sunday, November 16, 2014

Marijuana Reform Legalization on the Move

In the EPS Newsletter article “The Impact of Marijuana Reform on the Workplace” (published in November 2014 and written by Katherine Novak Townsend, Esq.), discussed recent marijuana reforms and the need for employer’s to stay on top of rapidly changing state laws. The November 2014 midterm elections resulted in two more states, Alaska and Oregon, as well as the nation’s capital, Washington D.C., voting to legalize small amounts of marijuana for adult recreational use.  Following in the footsteps of Colorado and Washington, Alaska and Oregon have passed regulations regarding retail production and sale and allowing adults to grow cannabis for their own personal use.  Stay tuned as we update new laws as well as court decisions interpreting the new laws and how they may impact employer-employee relations.