Sunday, August 7, 2016

The Toxic Employee: A Lost Cause or a Fixable Problem?

Very few people would gamble their health and safety by exposing themselves every day to a toxic waste dump full of poisonous and corrosive chemicals.  However, on a daily basis, many employees and managers face the workplace equivalent in dealing with toxic employees.  These are employees who have a poisonous effect on co-workers’ health and morale, and can have a corrosive impact on a company’s performance, corporate culture and bottom line, including increased litigation costs. They breed discontent, cause problems for co-workers, managers, and frequently are dishonest or unethical.  Toxic employees come in many varieties, but include the non-productive “slacker”, the negative and disgruntled worker, the manipulative passive-aggressive, and the office bully.          
A toxic employee in the workplace has been be compared to a low grade infection in that “[y]ou can live with it for a while but, if not properly treated, it can develop into a full-blown infection – making you, and your business suffer.”[1]  Studies also show that the behavior of toxic employees is contagious and can infect a workplace.  “[I]n other words, employees are many more times more likely to engage in toxic behavior if they’ve been exposed to other toxic employees.”[2] For these reasons it’s crucial for employers to try to avoid hiring such toxic employees in the first place, and ideally, human resource professionals will spot such individuals early in the interview process.  However, such toxic behavior often develops over time, and if they do get hired, employers face the option of either trying to reform the toxic behavior, or cutting their company’s losses, and terminating them.
So what is the cost of hiring a toxic employee?  A recent study by the Harvard Business School looked at the cost to companies of hiring otherwise skilled employees who engaged in toxic behavior, and compared those costs to the benefits of hiring so-called “superstar high-performers.”[3]  According to the study “avoiding a toxic employee could save a company $12,500 in turnover costs, while bringing in a superstar only added about $5,300 to a company’s bottom line.”[4]  Other business sources are more pessimistic about the cost of such bad hires.  A 2012 survey by CareerBuilder found that taking into factors such as potential litigation, costs of recruiting and hiring replacement workers, lower employee morale and negatively affected customers, the actual cost for each bad hire can range from $25,000 up to $50,000.[5] Toxic employees also have a significant negative impact on their co-workers.  These include:
  • Higher Employee Turnover Rates.  In a recent report by the employee training software company Cornerstone, “good employees are 54 percent more likely to quit when they work with a toxic employee, if the proportion of toxic employees on their team grows by as little as a 1:20 ratio.” [6] 
  • Workplace Stress/Health Problems.  In addition to being unpleasant, working with a toxic co-worker can be bad for both your physical and mental health.  According to a study by researchers at the Harvard Business School and Stanford University, such workplace stress is as bad for your health as secondhand smoke.[7]  Research shows that work stress increases the chance of a heart attack by 23%.[8]
  • Lawsuits/EEOC Charges.  Frequently the conduct of toxic employees toward their co-workers can result in EEOC Charges of Discrimination and lawsuits for harassment based on protected categories, such as race, gender, sexual orientation or ethnicity, or on the basis of a hostile work environment.
  • Low Morale/Loss of Commitment.  A toxic employee’s lack of enthusiasm or negative attitude can result in other employees having to pick up the slack, and they are sometimes referred to as “energy vampires” because the suck the life out of their co-workers.[9]  Having a toxic employee in the workplace can also result in employees losing their respect for the company for hiring the toxic employee or for failing to address the toxic behavior.  A recent survey shows four out of five employees believe management does not do enough to combat toxic employees, and are somewhat or extremely tolerant of such individuals.[10]
Compounding all of these problems is some recent bad news for employers regarding the new generation of employees.  A 2016 Gallup survey of the “millennial workforce”, those born between 1980 and 1996, or ages 20 through 36, show a majority are “checked out” and not engaged at work, and a significant percentage of this 73-million member generational group would qualify as toxic employees.[11]  The survey looked at whether such young employees are engaged at work, with “engaged” being defined as “emotionally and behaviorally connected to their job and company.”[12]  The results are as follows:
  • Only 29 % of millennials are engaged at work (The lowest in decades)
  • 55% of millennials are not engaged at work (Indifferent about work and just show up and put in their hours)
  • 16% of millennials are actively disengaged at work (More or less out to do damage to the company)
Mr. or Ms. Negative – The Sower of Dissatisfaction

Just because an employee is not always cheerful does not mean they are a toxic employee.  There is a big  difference between occasionally being disagreeable and always being negative.  When employees have been surveyed about the most toxic and harmful characteristics of a co-worker, 78 % of respondents ranked negativity higher than other qualities such as laziness, passive-aggressiveness, or gossiping, and 33 % of those survey felt such employees should be fired.[13]  The characteristics of Mr. or Ms. Negative include:
  • Constant complaining – Never failing to see the bad side of things
  • Constant comments to other employees about all the things the employer is “doing wrong” or how badly the employer is treating employees (especially them)
  • Responds to new initiatives with all the reasons “it can’t be done” or won’t work” and hinders creativity and innovation
  • Avoids resolving issues / Re-directs blame
  • Feels powerless to actually do anything to resolve or eliminate a situation that is unpleasant or disagreeable so instead they complain
  • Warning: Constant negativity can be symptomatic of mental illness or depression, which should be considered when addressing the problem 
The Slacker
This is the type of employee who will expend more effort avoiding work than actually doing their job.  This type of employee is a drain on a workplace’s productivity and enthusiasm, and fosters resentment from hard working employees.  As noted by the cloud communication company GetVoip, “[s]lackers are happy to let everybody else pick up the slack, and don’t seem to care what other team members or their managers think of them.  If they can get away with it, they will.”[14]  The traits of the slacker include:
  • Low motivation / Unwillingness to help others
  • Lack of regard for deadlines
  • Absenteeism / Tardiness
  • Wasting time online
The issue of online time wasting is not an insignificant problem.  While most employers permit a certain degree of non-business internet surfing by employees at work, the Slacker takes it to a level that is destructive to workplace productivity.  What follows is a listing of the estimated yearly productivity costs to businesses from such online activity: [15]

·      Playing Angry Birds - $1.5 Billion

·      Using/Surfing Facebook - $28 Billion

·      Playing Fantasy Football - $17.8 Billion

The Needy Employee

A subset of the Slacker employee is “The Needy Employee.”  This employee is typically incompetent, erratic, and unreliable and hurts productivity by constant appeals for help and relying on others to correct or bail them out from their mistakes.  This results in widespread frustration among the rest of the workforce.[16]  Characteristics of the Need Employee include:
  • Learned helplessness
  • Disorganization
  • Lack of credibility
  • Passivity
The Passive-Aggressive Employee

In the book “The Angry Smile: The Psychology of Passive-Aggressive Behavior in Families, Schools and Workplaces” passive aggression is defined as “a deliberate and masked way of expressing hidden or covert feelings of anger.”[17] In other words, these type of people act out in ways that are meant to sabotage others. 
The Passive-Aggressive Employee is a master of manipulation, and will be friendly on the surface, but aggressive and hostile in the background.  Confronting this type of employee is difficult, because they are by their nature, non-confrontational.  Instead of openly discussing issues that may be bothering them, they may instead make inappropriate remarks or mumble under their breath, which makes it extremely uncomfortable for others to be around.”[18]  Passive-aggressive employees present one of the toughest workplace challenges to both managers and coworkers. “Left unaddressed, passive-aggressive actions can spread to other employees and create a culture of heel dragging and mute rebellion.”[19]The tactics used by the Passive-Aggressive Employee include:
  • Gossip
  • Sarcasm
  • Sabotage / Revenge
  • Breaking chain of command
  • Back stabbing
The Bully

Workplace bullying is defined as repeated, health-harming mistreatment of one or more persons (the targets), by one or more perpetrators, and  the abusive conduct can take one or more of the following forms:
  • Verbal abuse
  • Threatening, intimidating or humiliating behaviors (including nonverbal)
  • Work interference – sabotage – which prevents work from getting done
     The Workplace Bullying Institute, offers a more detailed definition:
It is mistreatment severe enough to compromise a targeted worker's health, jeopardize her or his job and career, and strain relationships with friends and family. It is a laser-focused, systematic campaign of interpersonal destruction. It has nothing to do with work itself. It is driven by the bully's personal agenda and actually prevents work from getting done. It begins with one person singling out the target. Before long, the bully easily and swiftly recruits others to gang up on the target, which increases the sense of isolation.[20]

According to a 2010 Zogby survey commissioned by the Workplace Bullying Institute, it is a problem that can occur in any workplace.  The results of the survey included the following points:
  • 35% of workers have been bullied
  • 62% of bullies are men
  • 58% of targets are women
  • Women bullies target women in 80% of cases
  • The majority (68%) of bullying is same-gender harassment
  • Generalized bullying is four times more prevalent than illegal harassment
 In addition to the corrosive effect on workplace morale, corporate culture, productivity and employee retention, failure to quickly and effectively address incidents of workplace bullying can be costly to employers.  If the workplace bully is target another employee on the basis of a protected category, i.e. race, gender, sexual orientation, age, religion, disability, it is a sure-fire recipe for a lawsuit under Title VII or the other federal anti-discrimination statutes.  The Catch-22 with workplace bullies is they frequently are productive high performers.
While generalized bullying, which is not on the basis of any protected category, is not illegal or the basis for a discrimination lawsuit, there is a push to change that.  There is a push in many states and in Congress to enact what is called the Healthy Workplace Bill (“HWB”) which would make generalized bullying illegal and provide legal recourse to the targets of such bullying against the bully, and the employer.  The HWB has not yet been enacted but has been gaining increased support.  It’s central provisions are as follows:
  • Provides an avenue for legal redress for health harming cruelty at work (requires proof of harm by licensed healthcare professional)
  • Allows the workplace bully to be sued as an individual
  • Holds the employer accountable (Protects conscientious employers from vicarious liability risk when internal correction and prevention mechanisms are in effect
  • Restoration of lost wages and benefits
  • Compels employers to prevent and correct future instances
While it remains to be seen if the HWB will gain any traction in state legislatures or in Congress, it is clearly to an employer’s benefit to proactively step steps to prevent this abusive and unnecessary behavior and ensure their employees work in a positive, healthy environment.
The “Hot Head”….or Worse

The “Hot Head” employee is a worker who easily overreacts to workplace situations, resulting in temper tantrums, yelling at co-workers, throwing objects or damaging company property.  Employers should be on alert for such behavior, because the Hot Head can potentially cross the line from being a toxic employee to being a potentially dangerous and violent employee.  Personal security expert Robert Siciliano offers the following characteristics that can be warning signs for danger:[21]
  • Difficulty getting along with others, including inappropriate remarks about others
  • Constantly angry and upset about everything and everyone
  • Makes vindictive or violent references such as “He will get his someday,” “What comes around goes around,” or “One of these days I’ll have my say.”
  • Lacking social skills and their presence makes others feel uncomfortable and they have an edge to them that makes others not to want to be around them
  • A victim attitude of always blaming others for their behaviors, faults, mistakes or actions
  • Litigious nature. Taking legal action against neighbors and employers and constantly filing grievances as a way of virtually controlling others
  • Diagnosed or undiagnosed clinical paranoia, in which they think others – including employers or co-workers, are out to get them
The Martyr/Workaholic
“The Martyr” would not seem to naturally fit into the classification of toxic employee.  The complete opposite of “The Slacker”, “The Martyr” insists on taking on all tasks and insists on doing everything themselves.[22]  So what is the problem with such a hard-working dedicated employee?
Not just a hard worker, The Martyr also want to let everyone know what they are sacrificing for the job.  They may have control issues, or may be working too hard to prove themselves, but they bring an imbalance to the team, foster unrest in the ranks, and are at risk of burnout. [23]

Recent research suggests that such workaholic behavior is comparable to a form of addition, and that there is a link between such behavior and “OCD” or obsessive compulsive disorder.[24] The same study found such employees often suffer from anxiety or meet the clinical criteria for depression.[25] The problematic traits of such a seemingly dedicated employee include:
  • Doesn’t know his/her limits
  • Complains often/nonconstructive attitude
  • Comes to work when sick and infects everyone else
  • Prone to burnout / Loses motivation.[26]
Other Flavors of Toxic Employees
The examples given above is not intended to be an exclusive list, since toxic employees can come in many different flavors, and varying degrees of toxicity.  Other types include:
  •  Drama Kings or Queens
  • The Entitled Narcissist (Believes deserves raises, promotions, accolades regardless of actual accomplishments) 
  • The Socialite (time waster) 
To loosely paraphrase the great 18th century parliamentarian Edmund Burke, “[t]he only thing necessary for the triumph of toxic employees is for good employers to do nothing.” In other words, toxic employees frequently get away with their negative and destructive behavior because employers let them do it. 
In some cases, the toxic employee may actually be a highly producing or strategically important employee, and the employer is reluctant to risk correcting the bad behavior at the risk of losing the employee.  However, in most cases, the behavior continues because employers do not want to have to confront a difficult.  What are some ways businesses can proactively address the problem of toxic employees?
Foster communication.  Maintain an open-door policy that fosters communication and feedback and that allows employees to report toxic behavior by co-workers so you can identify the problem.
Address the problems promptly. Delay can cause the issue to fester and employees will resent employer’s failure to address the toxic employee/behavior.

Meet with employee and engage in frank interactive dialogue. Listen to employee’s reasons for toxic behavior (Have a second person present as a witness).

ADA/FMLA Issues. Be compassionate and be alert for any ADA/FMLA related issues.

Give specific examples of unacceptable conduct. Be sure to carefully document specific incidents so you can bring them up to your employee and explain exactly what the problem is without using emotional language, i.e., “Jane reported that you subjected her to bullying and hostile behavior and you yelled insulting comments about her appearance.”

Focus on the Behavior not the personality.  Recognize the goal is to improve the situation and correct the behavior, and that it is unlikely you will change the personality or general attitude of the employee.

Deadline for improvement. Give them a chance to change their ways and explain to the employee you will need to see improvement by a certain date or they will be terminated.

Document the meeting. Give the employee a copy explaining what is expected and the consequences if there is no modification of behavior within the deadline set by the manager.

Stick to the time frame. Terminate the employment effective immediately if there has been no improvement by the period communicated to the employee.

Termination policy.  Have a policy in place for terminations, including cancelling computer access, recovering digital devices, key cards, as well arranging for employee to be escorted off the premises.

Communicate with employees. Without going into specifics, inform co-workers about the decision to terminate the employee rather than keep them guessing and creating rumors.
In the case of employees exhibiting risk factors for workplace violence, the Occupational Safety and Health Administration (“OSHA”) recommends the risk of assault can be prevented or minimized if employers take appropriate precautions.[27] One of the best protections employers can offer their workers is to establish a zero-tolerance policy toward workplace violence. This policy should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.  By assessing their worksites, employers can identify methods for reducing the likelihood of incidents occurring. OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence.
This can be a separate workplace violence prevention program or can be incorporated into an injury and illness prevention program, employee handbook, or manual of standard operating procedures. It is critical to ensure that all workers know the policy and understand that all claims of workplace violence or threats of violence will be investigated and remedied promptly. Depending on the circumstances, the employer should at the earliest opportunity involve Human Resources, company security personnel, and if necessary, local law enforcement.   
What about efforts to correct the behavior of some of the specific toxic employees discussed above before making the decision to terminate? Pre-termination antidotes for The Slacker include:[28]
  • Uncovering  hidden resentments
  • Provide clear expectations
  • Demand accountability
  • Impose unscheduled visits and reviews
  • Recognize and reward efforts

In the instance of “The Needy Employee”, extra training and improvement plans may be an option to address the employee’s inefficiency, learned helplessness and overreliance on co-workers.  In the instance of the “The Martyr”, an antidote might be enforced delegation and incentivizing teamwork over individual effort.

In light of the damage a toxic employee can inflict on a company, it makes sense that the best option is to avoid hiring toxic employees in the first place.  While this is more difficult than it sounds, there are some proactive measures that employers can take in the hiring process.  One of the best measures is to develop a company culture that has zero-tolerance for toxic behavior.  The best organizations make explicit their intolerance for bad apples; they spell out which behaviors are unacceptable in the workplace and act decisively to prevent and halt them. 
This concept has been succinctly demonstrated by CEO Robert W. Baird, who heads a wealth management firm that handles over $100 Billion in assets.  His primary rule for employees is not to put their egos ahead of the their clients or the company.  Baird calls this “the no a**hole rule”, and says job applicants and employees violate it at their peril.[29]  In a 2013 interview he explained “I tell them, ‘If you're an a**hole, don't come here. We'll fire you.’”[30]  Baird says he has made good on that promise, even with top producers. “It's not hard at all… People in the trenches stand up and cheer you because they see you really mean it.” [31] 
In a recent article by the Harvard Business Review, Georgetown University Professor of Management Christine Porath offered employers the following advice to employers hoping to weed out toxic applicants in the hiring process:[32
Interview for civility and emotional intelligence.  In the average interview, the discussion usually focuses on job skills and experience, but a focus should be on the applicant’s civility in a workplace environment. Porath advises avoiding hypothetical questions, and instead requesting specific examples of how their past behavior matches the values you are seeking in an employee.  Porath says examples of such questions might include: [33]
  • What would your former employer say about you — positive and negative? [34]
  • What would your former subordinates say about you — positive and negative? [35]
  • What about yourself would you like to improve most? How about a second thing? A third? [36]
  • Tell me about a time when you’ve had to deal with stress or conflict at work. What did you do? [37]
  • What are some signals that you’re under too much stress? [38]
  • When have you failed? Describe the circumstances and how you dealt with and learned from the experience. [39]
  • What are some examples of your ability to manage and supervise others? When have you done this well? [40]
  • What kind of people do you find it most difficult to work with? Tell me about a time when you’ve found it difficult to work with someone. How did you handle it? [41]
  • Does the candidate speak negatively of former employers or others? [42]
  • Does the candidate take responsibility for behaviors, results, and outcomes, or do they blame others? [43]
  • Follow up with every employee who encounters the candidate, not just those on the  interview schedule. How an applicant treats individuals who they do not view as important to the hiring process can speak volumes.  How did they treat the person who drove them from the airport or the receptionist?  Were they friendly and polite or rude and condescending? [44]  
  • Porath recommends that a person-to-person call to a reference “is more likely to reveal any specific behavioral problems. Seasoned recruiters report that the most useful data they get from references comes from follow-up questions, and mainly from the reference’s tone, demeanor, and pace — not necessarily their words. Listen very closely and follow up on hints of trouble.” [50]
  • Ask the applicant's references structured questions that get at the heart of the individual's civility, such as:
-        “What’s it like working with him?” [45]

-       “What could he improve on?” [46]

-       “Did her behavior ever reflect negatively on your organization?” [47]

-       “How did his subordinates feel about working for him?” [48]

-       “How emotionally intelligent does she seem? Is she able to read people and adjust accordingly?” [49]

            There is no sure-fire vaccine against hiring a toxic employee, and no guaranteed antidote to fix the problem once they are hired, short of termination.  However, employer awareness of the potential problems can go a long way in making your workplace a toxin-free environment.

[1] Robert Bitting, Toxic Employees, Leadership and Organizational Development (2014)
[2] Toxic Employees in the Workplace, Cornerstone OnDemand (2015)
[3] Nicholas Torres, It’s Better to Avoid a Toxic Employee Than to Hire a Superstar, Harvard Business Review
(Dec. 9, 2015) <>.
[4] Id.
[5] Nearly             Nearly Seven in Ten Businesses Affected by a Bad Hire in the Past Year, CareerBuilder (Dec. 13, 2012)
[6] See footnote 2.
[7] Elizabeth Cohen, Stress at Work is Just as Bad as Secondhand Smoke, CNN (Sept. 3, 2015) <>.
[8] T. Chandola, Work Stress and Coronary Disease: What are the Mechanisms?, The European Heart Journal
[9] Ryan Kohler, How Removing Toxic Employees Will Improve Team Morale, ApplicantPro (April 25,
[10] Toxic Employees Survey 2015, Fierce, Inc. (July 15, 2015) <
[11] Paul Bedard, Gallup: Millennials 'checked out' at work, 16% 'out to do damage to employer', Washington
Examiner (June 7, 2016) <http://www.washingt/
[12] Id.
[13] Toxic Employees : Colleagues Advocate Confrontation While Employers Perceived as Too Tolerant, Fierce, Inc.
(Sept. 19, 2013) <>.
[14] Reuben Yonatan, 5 Types of Toxic Employees and How to Deal With Them, GetVoip (Feb. 24, 2015) <>.
[15] Id.
[16] Id.
[17] Jody Long, Nicholas James Long, Signe Whitson, The Angry Smile: The Psychology of Passive-Aggressive
Behavior in Families, Schools and Workplaces (Pro Ed Publishing 2009).
[18] Vivian Giang, 8 Ways to Deal With Passive Aggressive Employees, American Express Small Business Forum
(Oct. 13, 2014) <
[19] Katherine Reynolds Lewis, Can you rehabilitate a Passive Aggressive Employee?, Fortune, Inc. (Aug. 2, 2011)>.
[20] Frequently Asked Questions, Workplace Bully Institute (2015) <>.
[21] Robert Siciliano, Workplace Violence: 12 Signs Of A Dangerous Person, Huffington Post (June 8, 2014)
[22] Reuben Yonatan, 5 Types of Toxic Employees and How to Deal With Them, GetVoip (Feb. 24, 2015) <>.
[23] Id.
[24] Susie East, Are You Addicted to Work?, CNN (June 12, 2016)<
[25] Id.
[26] Id.
[27] Workplace Violence, Occupational Safety and Health Administration (2015) <>.
[28] Reuben Yonatan, 5 Types of Toxic Employees and How to Deal With Them, GetVoip (Feb. 24, 2015) <>.
[29] Sandra A. Swanson, Best Places to Work 2013, Crain’s Chicago Business (April 1, 2013)
[30] Id.
[31] Id.
[32] Christine Porath, How to Avoid Hiring a Toxic Employee, Harvard Business Review (Feb. 3, 2016) <>.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id.

Thursday, June 30, 2016


The United States Court of Appeals for the Fifth Circuit has rejected an unsuccessful job applicant’s claim that he was denied employment because of his criminal record.  The Plaintiff in Noris Rogers v. Pearland School District unsuccessfully argued that his history of felony convictions for drug offenses, including the sale of heroin, amounted to race discrimination under a disparate impact theory of liability.

In recent years, the Equal Employment Opportunity Commission (“EEOC”) has filed a number of high-profile lawsuits against companies, taking the position that utilizing criminal background checks in making employment decisions may be a violation of Title VII of the Civil Rights Act of 1964.  The stated rationale for the EEOC’s stance is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects, or has a “disparate impact” on African-Americans and Hispanics, who statistically have higher rates of arrest and criminal conviction. 

In Rogers, the African-American Plaintiff applied for a job as a master electrician for a Texas school district.  On the application, Rogers responded “No” to all questions regarding criminal history, including whether he had ever been convicted of or pled guilty to a criminal offense, and gave his consent for a criminal background check.  The background check revealed that Rogers had multiple felony drug convictions.  When asked by the school district’s human resources director about the incorrect information, Rogers became angry, raised his voice and had to be asked to leave.  The school district later hired an African-American male for the position.

A few months later, the successful applicant resigned and the position again became available.  Rogers reapplied, this time disclosing his criminal record on the application.  The school district did not hire Rogers because of his “lack of candor” in disclosing his criminal record the first time.  In his lawsuit, Plaintiff claimed the real reason was race discrimination based on his drug arrests, and not on the fact he lied on his job application.  The Texas trial court granted the school district’s summary judgment motion, dismissing the case, and Rogers appealed the ruling to the Fifth Circuit.

In holding that the trial court was correct in dismissing the case, the Fifth Circuit rejected Rogers’ claim that the School District maintains a policy of “excluding from consideration for employment all persons who have been convicted of a felony.”While the Fifth Circuit noted that under the school district’s actual policy, a felony conviction would be an adverse factor in an application, it is  “not an automatic bar to employment.” In addition, the record shows that the School District follows procedures that require the opportunity for an in-person meeting with any applicant to discuss the applicant’s criminal history. The record also shows that the School District recently hired several employees who had felony and misdemeanor convictions.  The Court discounted Rogers’ comparator of a white school district employee who failed to disclose on a job application a misdemeanor charge of marihuana possession thirty years earlier.

While not discussed in detail in the Fifth Circuit’s Opinion, it appears the school district’s policy was in line with the recently updated EEOC guidelines, which put 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.  Under the EEOC’s 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 case highlights the need for employers to have such screening guidelines in place, proper documentation to support any employment decision based on a criminal history, and not to have any blanket-ban on employing individual with a criminal history.

Thursday, June 9, 2016

“♫ Sign, Sign, Everywhere a Sign ♪”: The EEOC and DOL Sing a New Tune on Required Postings


Those old enough  may remember the 1970 one-hit-wonder “Signs” by the rock group Five Man Electric Band, with its chorus of:
Sign, sign, everywhere a sign
Blockin’ out the scenery, breakin’ my mind
Do this, don’t do that, can’t you read the sign?
 In some recent announcements, the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) are calling the tune on employer requirements for posting employee notices of their rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and the Family and Medical Leave Act (“FMLA”)  Unlike the 1970 song, the requirements do not address a protected class of “long haired freaky people”, but do impose financial penalties for noncompliance.
Effective July 5, 2016, the EEOC’s new rule more than doubles the maximum fine against employers for not complying with the posting requirements under Title VII, the ADA and GINA.  Employers will now face a maximum penalty of $525 per violation, up from $210.  The penalty last changed in 2014, when the EEOC increased it from $110 to $220.
Under the law, employers with 15 or more employees are required to post a notice describing their rights under federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, or genetic information.  These Equal Employment Opportunity (“EEO”) posters are required to be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.  In addition to physically posting the notices, the EEOC encourages employers also to post similar electronic notices on their internal websites in a conspicuous location.  However, such an electronic posting does not fulfill the requirement of an actual physical posting in the workplace.  If employees do not understand or read English, the employer must provide notice in the appropriate language.
Employers frequently get themselves in trouble for perfunctorily putting these posters where they cannot be readily seen by employees, or not posting them at all.  When an EEOC investigator stops by, often the first thing they inquire about is the EEO poster, and being out of compliance is not an auspicious way to begin an EEOC investigation.  Printable posters in English and other languages are available from the EEOC website, although commercially purchased posters also will meet the requirement.
In other posting news, the DOL recently issued a new FMLA poster to replace the previous one required to be displayed by employers.  For the time being, the DOL is not requiring employers to replace their existing posters until further notice.  However, it is important that employers review their existing FMLA policies to make sure the written policies contain all of the information and requirements contained in the new poster, and if not, update them accordingly.  As with the posting requirements for the EEO posters, employers are required to post the FMLA posters in a conspicuous place in the workplace, and can face monetary fines for noncompliance.  For more detailed information, the DOL’s Wage and Hour Division has put out a publication entitled The Employer’s Guide to the Family Medical Leave Act.

Sunday, June 5, 2016


The Equal Employment Opportunity Commission (“EEOC”) has filed suit against a Massachusetts hospital, alleging it discriminated against an employee on the basis of religion when it fired her for not complying with a facemask requirement after she declined a flu shot for religious reasons.  EEOC v. Baystate Med. Ctr., Inc. raises unique issues of what constitutes a reasonable accommodation to religious practices under Title VII of the Civil Rights Act of 1964 (“Title VII)”, as well as the scope of what is an undue hardship for employers, especially in the context of a health care provider.

In the federal lawsuit filed on June 2, 2016, the EEOC alleges that Baystate Medical Center fired administrative employee Stephanie Clarke after she sought a religious accommodation from the hospital’s mandatory employee immunization policy.  The hospital had an accommodation policy for employees who refused flu shots for religious reasons, which required such employees to wear a surgical facemask while at work.  The hospital suspended Clark without pay after she failed to wear the mask consistently, complaining she was not able to adequately communicate as part of her job while wearing the mask, which covered her nose and mouth.  She was told that she could not return to work until she either received an immunization or wore the mask at all times.  When Clark declined either option on the basis of a religious objection, the hospital treated her response as a job resignation.

Title VII prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate sincerely held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.  For purposes of religious accommodation under Title VII, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer's business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation.

What raises the not-so-clear issues in this lawsuit is that Clark was not a healthcare worker, but instead an administrative talent acquisition consultant, who, while she worked at the hospital, had no direct contact with patients.  In public statements, the hospital has asserted that its policy of requiring employee immunizations or alternatively, for objecting employee to wear a facemask, is a reasonable measure to ensure patient safety.  While it is anticipated the EEOC will argue that Clark’s lack of patient contact renders the hospital’s actions unreasonable, it is as likely that the hospital could argue that because of the infectious nature of the flu, a non-healthcare worker present in the hospital could infect other employees who ultimately would have contact with patients, including those with weakened immune systems.  
An issue that also is likely to arise is whether wearing a facemask is actually an effective reasonable accommodation for purposes of patient safety.  The federal Centers for Disease Control have noted that it is unclear how well masks work to prevent transmission of the flu, or to what extent masks actually block or filter viruses from the air.  However, some experts note that they do offer some level of protection.  As such, the case also will place before the federal court the issue of whether a healthcare facility should be given deference in determining policies for patient safety, and whether having to modify such policies constitutes an undue hardship under Title VII.
Whether Clark’s objection to flu shots is a sincerely held religious practice is unlikely to become an issue in the case.  Title VII construes religion very broadly, and in religious discrimination cases, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice.  In the EEOC lawsuit, it infers that Clark’s objection is based on her personal interpretation of the Bible. 

However, as previously noted in The Employee with the Dragon Tattoo, despite such judicial deference, on occasion a court will find that an employee’s claimed religious practice simply does not pass the smell test.  In Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4th Dist.), the California Court of Appeals has held that a prison guard’s self-created church of “Sun Worshiping Atheism” was 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. 

Thursday, May 26, 2016

Message to Employers: “We’re from the Government . . . and we’re not here to help!”

Employers can expect some new challenges in responding to EEOC Charges and with eight months to go before a new administration, the White House has announced it is targeting the use of non-compete agreements, commonly used by many American employers to safeguard business interests and protect trade secrets and confidential information.  Employers also are facing a December 1, 2016 deadline to decide how to address the Department of Labor’s final Rule on the Fair Labor Standard Act’s “white collar exemption”, which has more than doubled the salary requirement employers must meet to claim the exemption from employee overtime.
EEOC Issues Standards for Employer Position Statements
The Equal Employment Opportunity Commission (“EEOC”) has issued first-time-ever national standards and procedures it expects employers to follow in responding to an employee EEOC Charge of Discrimination.  While some of the procedures are nothing new, and reflect long-standing practices, one aspect should cause employers and their legal counsel concern.
The new guidelines dictate that employers provide very detailed information and specific information, which is comparable to information a plaintiff’s attorney would typically request in litigation discovery.  In the new procedures, the EEOC explicitly states it  will provide a copy of the employer’s EEOC Response and any attached documents to the Charging employee at their request, and allow them to file a rebuttal statement, which will not be provided to the employer.  In essence, the EEOC will facilitate the employee’s pre-litigation discovery, but leave the employer in the dark.  This presents a quandary for employers.  Typically, you want to present your strongest arguments in your position statement.  However, knowing that particular information and legal theories presented to the EEOC will be seen by the employee and his or her attorney raises the issue of how much to include, knowing that litigation is likely to follow the filing of the Charge.  The EEOC procedures give no basis as to why the employer is not allowed access to the employee’s rebuttal statement.
The procedures also require that if any reference to trade secrets or confidential business or financial information is made in the employer’s position statement, copies of such documents must be provided as separate attachments.  The procedures note the “EEOC will review attachments designated as confidential and consider the justification provided, as the agency will not condone blanket or unsupported assertions of confidentiality.”  What this means is that the EEOC will decide whether it considers the documents confidential, and if it does not, such documents could be provided to the Charging employee and their attorney.  The procedures also provide a much stricter standard for granting employers extensions of time to submit their position statements.  The EEOC now requires that all position statements and documents be filed digitally via an EEOC Internet portal.
White House Targets Non-Compete Agreements
Earlier this month, the White House released a report highly critical of the use of non-compete agreements by American employers, and listed what it considered the seven (7) problem areas of non-compete agreements:  
  1. Workers who are unlikely to possess trade secrets (i.e., low wage workers) who are nevertheless required to sign non-competes
  2. Workers who are only asked to sign a non-compete after accepting a job offer (thereby reducing their bargaining power)
  3. The lack of clarity to workers regarding the meaning and implications of the non-compete
  4. Overly broad non-compete agreements
  5. No consideration for non-compete beyond continued employment
  6. Non-competes that prevent workers from finding new work - even when they were fired without cause
  7. How non-competes restrict consumer choice
While such restrictive employment covenants are generally not favored by the courts, they will be enforced if the terms of the agreement are reasonable under the particular circumstances.  Generally, there are three requirements: (1) the employer has a valid interest to protect; (2) the geographic restriction is not overly broad; and (3) a reasonable time limit is given.  The employer bears the burden of proving the reasonableness of the agreement.  The reason these types of agreements are construed very narrowly is that most courts recognize that an employer is not entitled to protection against ordinary competition from a departing employee.  Non-compete agreements can be valuable tools to protect an employer’s legitimate business interests, but generally, it is inadvisable to have low level employees sign such agreements, because they are typically not going to possess the confidential information that would warrant enforcement of the agreement.
The White House cannot take any direct action, because such agreements are governed under the individual laws of each state, and are not governed by federal law.  The Report indicates that the Administration “will identify key areas where implementation and enforcement of non-competes may present issues, examine promising practices in states, and identify the best approaches for policy reform”, suggesting plans to lobby state legislators and policymakers in the individual states.
DOL Final Rule for FLSA White Collar Exemption
After significant delay, the U.S. Department of Labor (DOL”) announced its final rule updating the regulations applicable to white collar exemptions, which will go into effect December 1, 2016. The DOL estimates that, absent employer action, the change will entitle more than 4 million white collar workers currently classified as exempt to overtime eligibility.
The Fair Labor Standards Act (“FLSA”) generally requires that most employees be paid at least minimum wage for all hours worked and overtime pay for all hours worked over 40 hours in a workweek. However, employees employed as bona fide executive, administrative and (most) professional (“white collar”) employees are exempt from both minimum wage and overtime pay if they meet two key requirements: are paid more than a specified weekly salary on a fixed salary or “fee” basis and perform certain job duties. 

The most significant change in the final rules is that it more than doubles the required salary to $913 per week, or $47,476 annually.  The previous standard was $455 per week, or $23,660 annually. The new rule establishes a mechanism whereby the salary and compensation levels will be updated every three years, with the first update taking effect January 1, 2020.  Encompassed within the white collar exemptions are highly compensated employees who earn a higher total annual compensation level than the other categories of white collar employees and satisfy a minimal duties test. Currently, the minimum annual compensation threshold for highly compensated employees is $100,000. The final rule increases this threshold to $134,004.

In the U.S. Department of Labor Blog, the DOL has offered the following suggestions to employers on how to adapt to the upcoming new requirements:•Raise salary and keep the employee exempt from overtime: Employers may choose to raise the salaries of employees to at or above the salary level to maintain their exempt status, if those employees meet the duties test (that is, the duties are truly those of an executive, administrative or professional employee). This option works for employees who have salaries close to the new salary level and regularly work overtime.
    • Raise salary and keep the employee exempt from overtime: Employers may choose to raise the salaries of employees to at or above the salary level to maintain their exempt status, if those employees meet the duties test (that is, the duties are truly those of an executive, administrative or professional employee). This option works for employees who have salaries close to the new salary level and regularly work overtime.
    • Pay overtime in addition to the employee’s current salary when necessary: Employers also can continue to pay their newly overtime-eligible employees the same salary, and pay them overtime whenever they work more than 40 hours in a week. This approach works for employees who work 40 hours or fewer in a typical workweek, but have occasional spikes that require overtime for which employers can plan and budget the extra pay during those periods. 
    • Evaluate and realign hours and staff workload: Employers can ensure that workload distribution, time and staffing levels are all managed appropriately for their white-collar workers who earn below the salary threshold. For example, employers may hire additional workers.

Despite the happy talk from the DOL, the business community is highly critical of the new final rule.  Lower-wage business and service industries call the move a business and career killer, with limited to no benefit to the employees it is supposed to help.  According to the National Retail Federation (“NRF”), instead of increasing salaries to raise workers above the overtime threshold, many businesses will simply reclassify professionals as hourly workers, removing their existing perks, flexibility, and benefits. Likewise, the NRF expects most businesses will pay the required overtime, but simply cut base pay to compensate for the cost.
In light of broad reach of the dramatically increased salary threshold, as well as the virtually automatic increase every three years, it is imperative that employers begin analyzing their salaried exempt workforce to prepare for compliance by December 1, 2016, if they have not done so already.