Tuesday, March 31, 2015

Sun Worshipping Atheist Loses Religious Discrimination Suit



In religious discrimination cases under Title VII, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice. The cases usually hinge on whether the employer reasonably accommodated the employee’s religious conflict with a workplace policy, or whether the requested accommodation imposed an undue hardship on the employer.  As noted in my original article “The Employee with the Dragon Tattoo”, even tattoos and piercings have been recognized as sincerely held religious practices.

However, the California Court of Appeals has held that a prison guard’s self-created church of “Sun Worshiping Atheism” is not a protected religion, and the employer had no duty to accommodate the plaintiff’s belief in getting a full night’s sleep by waiving mandatory overtime hours. [Marshel Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4th Dist.)]

When hired at the prison, Marshel Copple was told there was mandatory overtime. However, shortly after being hired, he requested to work only 8 hour shifts based on Sun Worshiping Atheism’s religious tenets of praying in the sun, exercising, socializing, getting fresh air, sleeping well and being skeptical in all things.  When the prison declined to accommodate his request, he refused to work three overtime shifts and subsequently resigned, claiming constructive discharge. He filed an EEOC Charge, which was dismissed and and subsequently brought suit under California’s Fair Employment and Housing Act.  Following a summary judgment ruling against him in a lower court, he appealed the adverse ruling.

In affirming the dismissal of the lawsuit, the California appellate court held that religions address “fundamental and ultimate questions having to do with deep and imponderable matters”, and that Sun Worshiping Atheism was simply a practice of living a healthy lifestyle, with none of the trappings of a religion.

In my post “Sign of the Beast Hand Scanning Case Provides Valuable Lesson to Employers", I discussed how an employer’s failure to accommodate an employee’s religious beliefs resulted in a high dollar jury verdict for the employee.  In that case, the employee was denied a reasonable accommodation to his religious belief that the technology behind the employer’s hand scanning time clock system had a connection to the “mark of the beast”  as alluded to in the Book of Revelation in the New Testament of the Bible. 



However in a recent similar case, the United States Court of Appeals for the Sixth Circuit found in favor of the employer, where the employee refused to provide a Social Security number because he considered it the “mark of the beast.”  In Yeager v. FirstEnergy Generation Corp. (6th Cir.), the Sixth Circuit held an employer has no duty to accommodate a religious belief where such an accommodation would violate a federal statute, which in this case, required the employer to collect and report the Social Security numbers of their employees.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Saturday, March 28, 2015

NLRB Launches New Comprehensive Attack Against Employee Handbook Provisions



In previous posts, such as “NLRB says ‘No Workplace Secrets Allowed!’” I noted that in recent years, the National Labor Relations Board (“NLRB”) has taken an aggressive “bigfoot” approach against many commonly utilized employee handbook policies.  The NLRB’s justification for filing complaints against employers was that overbroad language in employee handbooks purportedly violated the National Labor Relations Act (“NLRA”).  

The first notable example was when the NLRB used the same rationale to find many employers’ social media policies to be in violation of the NLRA.  Another lesson employers learned from the NLRB’s assault on workplace social media policies is that an employer can be found in violation on the basis of an overbroad policy alone, even if there is no action taken against an employee for violation of the policy.  As many employers also learned from the NLRB’s social media focus, even non-union employers can be found in violation of the NLRA. 

Earlier this month, the NLRB issued a 30-page report intended to offer guidance to employers in drafting handbook provisions that will withstand the NLRB’s scrutiny.  The NLRB states the report is intended to address what it describes as “an evolving area of labor law.” This includes routine and longstanding employment policies that the NLRB believes have a chilling effect on employees’ concerted activities protected by Section 7 of the NLRA.

What types of handbook policies have drawn the NLRB’s ire? Examples include employer confidentiality provisions that forbid employee disclosure of “employee information” or “ another’s confidential or other proprietary information.”  The NLRB believes such policies are overbroad when they are not narrowly tailored to protect trade secrets or proprietary information as opposed to violating Section 7 by forbidding discussion of wages or other terms and conditions of employment among employees.  The NLRB report also considers policies that call for employees to be respectful of others in the company or to avoid derogatory comments to also be overbroad and possibly constitute a violation of Section 7. The NLRB report stresses that violations will be found for “even well-intentioned rules”, even when there is no intent to violate Section 7. 

The NLRB’s release of the comprehensive report can reasonably be seen as a warning of another round of aggressive action by the NLRB against employers, similar to what was seen when the Board began going after employers for their social media policies.  This should not be a surprise from an exceedingly political Board, which has actively advanced the administration’s extreme pro-union positions. 

In light of the NLRB report, employers would be well advised to promptly conduct a comprehensive review of all handbook policies to revise any potentially overbroad language, so as to avoid showing up on the NLRB’s radar.  

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com








Wednesday, March 18, 2015

Settlement in HIV Termination Lawsuit Highlights Continuing Employer Confusion over ADA



A nationwide manufacturer and distributor of fruit juice will pay $125,000 to settle a lawsuit brought by the EEOC on behalf of an employee who was terminated after the company learned he was HIV-positive. [EEOC v. Gregory Packaging, Inc. (N.D. Ga.]  The fact that the employer specifically told the man he was being terminated because of his HIV status highlights continuing employer confusion over the Americans with Disabilities Act (“ADA”), even twenty-five years after its passage, and especially as it relates to employees with HIV/AIDS.

The plaintiff in the case was employed as a machine operator at the Newnan, Georgia facility of Gregory Packaging, Inc., a company that sells juice products to school districts and medical institutions. When the employee developed a skin rash unrelated to his HIV, rumors began to circulate among other employees that the employee’s rash was the result of AIDS.  In an effort to quash the rumors, the employee informed his supervisor that while he did have HIV, the skin condition was unrelated, and there was no danger of him transmitting HIV to food products or co-workers.  Despite his good job performance, and no evidence of a health risk, the employee was terminated approximately a month later.  He was informed the reason he was being fired was because he had HIV.

The employee declined a separation agreement offered by the company, which included a release of claims. The Equal Employment Opportunity Commission (“EEOC”) subsequently brought a lawsuit on the employee’s behalf, alleging violations of the ADA and similar claims brought under Georgia state law.  Despite the company’s early efforts to fight the lawsuit, the case was settled pursuant to a court-approved consent order, which provided for the $125,000 payment by the New Jersey based company, and required equal employment opportunity training and reporting to the EEOC.

What is most surprising about this case, is that even before the ADA’s expansion under the Americans with Disabilities Amendment Act (“ADAAA”), it was generally established that a person with HIV/AIDS met the Act’s definition of an individual with a disability.  Furthermore, as noted in EEOC guidelines, even those who are regarded as having HIV/AIDS are protected under the Act, even if they do not have the disease.  The example given by the EEOC is a person being fired on the basis of a rumor that he had AIDS, even though he was not infected.

Employers involved in the food and restaurant industry are often at the focus of these types of lawsuits. As was the case at Gregory’s Georgia facility, the situation is often fueled and exacerbated  by rumors spread by co-workers or customers, and fears of HIV/AIDS being transmitted through an employee’s contact with food products.   

According to the Department of Health and Human Services, HIV/AIDS is not a disease that can be transmitted through food handling. Diseases that can be transmitted by an infected person handling food include (1) noroviruses, (2) the Hepatitis A virus, (3) Salmonella, (4) Shigella, (5) Staphylococcus, and Streptococcus.  For more detailed information, employers in the food service/restaurant industry can find guidance through the EEOC publication “How to Comply with the Americans withDisabilities Act: A Guide for Restaurants and Other Food Service Employers.”

Employer’s also need to be aware that in the context of HIV/AIDS, the ADA also protects employees who do not have the disease, but have an association or relationship with someone who does.  In the EEOC guidelines, examples of employment discrimination against persons with HIV or AIDS include:

         An automobile manufacturing company that had a blanket policy of refusing to hire anyone with HIV or AIDS.

         An airline that extended an offer to a job applicant and then rescinded the offer after the employer discovered (during the post-offer physical) that the applicant had HIV.

         A restaurant that fired a waitress after learning that the waitress had HIV.

         A university that fired a physical education instructor after learning that the instructor’s boyfriend had AIDS.

         A County tax assessment office that cancelled training opportunities for an accountant following her disclosure that she had HIV.

         A retail store that generally rotated all sales associates between the sales floor (where they could earn commissions) and the stock room (where they processed merchandise) except for the sales associate who was rumored to have HIV, who was never rotated to the floor.

         A call center employee who was denied a promotion to shift manager because his employer believed the employee would be unreliable since he had AIDS.

         A company that contracted with an insurance company that had a cap on health insurance benefits provided to employees for HIV-related complications, but not on other health insurance benefits.

While the ADA does include a “direct threat” defense in regard to employees who pose a significant risk of substantial harm to the health and safety of the employee or others, the defense  requires medical or other objective evidence, as opposed to subjective beliefs or assumptions based on stereotypes.  However, the take-away from this case is that proper training of supervisors in addressing ADA issues is a much better and less expensive option than having to establish defenses after a suit has been filed.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com




Saturday, March 7, 2015

“Sign of the Beast” Hand Scanning Case Provides Valuable Lesson to Employers



An employer’s use of a high-tech device to stay in compliance with the Fair Labor Standards Act (“FLSA”) has resulted in a large dollar jury verdict in a religious discrimination case, as well as continued scrutiny from the Equal Employment Opportunity Commission (“EEOC”).  [EEOC v. Consol Energy, Inc., N.D. W.Va.] The case should serve as a valuable lesson to employers when it comes to providing for reasonable accommodation of religious practices, as required under Title VII of the Civil Rights Act of 1964.

Accurate time-keeping of employee work hours is a requirement of the FLSA, but employers routinely have to deal with employees who forget to properly clock-in or clock-out, or who sometimes arrange for friends/co-workers to falsify work hours by having them clock-in for the otherwise absent employee.  One high-tech solution that employers have started using is biometric devices, which scan an employee’s unique fingerprint or handprint to simplify the process and to guarantee that the person clocking-in is the actual employee.  How could anything go wrong with such a fool-proof and elegant solution?  That question would best be directed to mining company Consol Energy, Inc.

Consol operates a coal mine in West Virginia, and utilizes a biometric hand scanning device to track employee work hours for purposes of payroll and FLSA compliance.  One employee, Christian Beverly Butcher, told his supervisor that he could not comply with the hand scanning policy because he believed the technology has a connection to the “mark of the beast” and the Antichrist, as alluded to in the Book of Revelation in the New Testament of the Bible. 



As a proposed reasonable accommodation, the company offered to allow Butcher to scan his left hand with his palm up, which he declined.  Butcher resigned, stating that he was doing so involuntarily.  He brought his complaint to the EEOC, which filed suit on his behalf against the company, alleging that Consol had violated Title VII by failing to reasonably accommodate Butcher’s sincerely held religious beliefs.

A federal judge in West Virginia denied Consol’s effort to have the lawsuit dismissed on a motion for summary judgment, and in January 2015, a jury ruled in Butcher’s favor and awarded $150,000.00 in compensatory damages.  The EEOC has since filed a post-trial motion seeking an additional $413,000 in front and backpay.  Adding insult to injury, on March 4, 2015, the EEOC moved the District Court to grant an injunction barring the company from forcing its employees to use biometric hand scanning systems, arguing that there is a risk the company will continue to violate anti-discrimination laws.

Religious accommodation cases can be a minefield for employers. The lesson to be learned from this case is that Title VII and the EEOC take a very broad view of religion, and generally, courts do not want to be placed in the position of deciding what is or is not a bona fide religion or religious practice or belief.  Accommodations are not required if the employer would suffer undue hardship – that is, “more than de minimis “ or a minimal cost. Whether an accommodation would be an undue hardship is determined on a case-by-case basis, and considers the potential burden on an employer’s business in addition to any monetary costs. 

While a reasonable accommodation does not have to be the particular accommodation preferred by the employee, it does have to be an accommodation that resolves the religious conflict with the workplace practice.  In this case, the company’s offer to let Butcher scan his left hand, palm up as opposed to his right hand, palm down, did not resolve the essential conflict between Butcher’s sincerely held religious belief and the company’s biometric time recording system.  In this case, the company could have avoided very expensive litigation simply by allowing Butcher to have used a non-biometric time recording system, such as a manually filled-out time card.

It is for this reason, that employers are well advised to include in their employee handbooks language that makes employees aware of their right to request religious accommodation.  Employers also should provide training to supervisors on how to recognize religious accommodation issues and how to successfully address such requests. 

Religious accommodation cases typically involve conflicts between religious practices and uniformly applied workplace dress codes or grooming standards, or workplace schedules that conflict with an employee’s Sabbath or other religious holidays.  However, every case can vary.  As noted in the original article from which this blog draws its name, even an employee’s tattoo can raise religious accommodation issues.  While the religious conflict in EEOC v. Consol Energy, Inc. is not something usually encountered by employers, it illustrates that every religious accommodation issue needs to be addressed on a case-by-case basis, and that there is no “one-size fits-all” solution.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Tuesday, February 24, 2015

EEOC Blasted for Reliance on “Slipshod” Work of “Expert” Witness in Background Check Lawsuit

 
 

The Equal Employment Opportunity Commission ("EEOC") last week suffered a major defeat in its aggressive litigation offensive against employers using criminal and credit background checks. In an excoriating opinion affirming a lower court decision in EEOC v. Freeman, the United States Court of Appeals for the Fourth Circuit held that the expert witness on which the EEOC entirely bases its theory of liability conducted "slipshod work" and is "utterly unreliable".
 
The EEOC takes the position that utilizing such background checks in making employment decisions violates Title VII under a "disparate impact" theory of liability, because it disproportionately affects African-Americans and Hispanics, who statistically have higher rates of arrest and criminal conviction or bad credit.
 
I previously discussed the Freeman case in my August 2014 post Mad Men: The EEOC Advertises its Aggressive Agenda. In Freeman, a United States District Court in Maryland granted summary judgment in favor of the employer, dismissing the EEOC’s claim that the company’s background check policies violated Title VII. In so doing, the District Judge in the case recognized Freeman’s policy of conducting criminal history or credit record background checks on potential employees as "a rational and legitimate component of a reasonable hiring process." The District Court chastised the EEOC for pursuing a disparate impact discrimination claim based on "a theory in search of facts to support it," disregarding the EEOC’s expert’s report as "laughable" and "an egregious example of scientific dishonesty." The EEOC subsequently appealed the District Court’s decision to the Fourth Circuit.
 
The Fourth Circuit panel agreed with the lower court as to the seriously flawed statistical data and conclusions submitted by industrial and organizational psychologist Kevin R. Murphy on behalf of the EEOC. What makes the EEOC’s reliance on this expert witness even more puzzling is that the EEOC has repeatedly used Murphy in similar lawsuits, and other federal courts have likewise ruled against the EEOC and excoriated the sloppy and error ridden expert reports.
 
One of the Circuit Judge on the Freeman panel expressed serious concern over the EEOC’s litigation tactics because "[d]espite Murphy’s record of slipshod work, faulty analysis, and statistical sleight of hand, the EEOC continues on appeal to defend his testimony . . . It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so."
 
Under the EEOC’s current guidelines, for an employer to avoid Title VII disparate impact liability for excluding an individual with a criminal record, the employers must show that any reliance on a criminal history is job related and consistent with business necessity. In doing so, an employer must show that it considered three factors: (1) the nature and gravity of the offense, (2) the amount of time since the conviction, and (3) the relevance of the offense to the type of job being sought. The EEOC’s guidelines place the burden on employers to develop screening guidelines to individually assess each applicant/employee to determine whether a criminal history may be used as a factor in any employment decision.
 
It’s important to note that currently, no federal law prohibits the consideration of criminal convictions in making employment decisions, and the EEOC’s position is simply an aggressive outgrowth of the agency’s current strategic enforcement plan.
 
While the Fourth Circuit’s ruling is very good news, the case is still troubling from a business perspective. The EEOC continues to force employers to engage in expensive litigation to defend themselves against a theory of liability based on what amounts to fabricated evidence.


Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com