Wyche at Work: October 2014 Employment Update

Prepared by Ted Gentry
October 2014

EEOC Update:  More Tricks, Fewer Treats for Employers this Halloween

The Equal Employment Opportunity Commission (“EEOC”) is the federal agency tasked with investigating violations of and enforcing federal discrimination laws. Recent EEOC activity has been particularly “spooky” for employers.

The EEOC’s “Scary” Investigation Tactics

Wyche at Work has highlighted the benefits of seeking the advice of an attorney when dealing with an EEOC investigation. Two recent cases, KB Staffing and Case New Holland, demonstrate a particularly aggressive approach an employer may face during an EEOC investigation and why counsel may be desirable in these proceedings.

EEOC v. KB Staffing

A former employee brought an age discrimination charge against KB Staffing. The charge alleged that KB Staffing forced all of its applicants to answer health questionnaires before being placed with a particular job, which caused KB Staffing to deny job placements to older individuals. KB Staffing and the former employee settled the matter, the former employee agreed to attempt to withdraw the charge, and KB Staffing stopped using the health questionnaire.

Despite the settlement and KB Staffing’s agreement to withdraw the health questionnaire, the EEOC continued its investigation into KB Staffing’s employment practices. Eventually the EEOC issued a subpoena to KB Staffing asking for the company’s previous three years of hiring/firing decisions as they related to the questionnaire. KB Staffing refused to provide the information as it believed the charge had been settled and the EEOC had no interest in proceeding with the charge.

The Federal District Court for the Middle District of Florida held that the EEOC retained the right to continue its investigation. In doing so, the court noted that the EEOC had rightfully refused to withdraw the underlying charge because the EEOC had an interest in enforcing discrimination statutes. More importantly, the court held that the EEOC’s continued investigation was necessary to “vindicate the public interest in combating systemic discrimination.”

This case reaffirms the position that the EEOC may investigate an employer’s general employment practices even if the charge precipitating the investigation related to an individual claim of discrimination is settled and the individual filing the charge is no longer participating in the process.

Case New Holland, et al. v. EEOC, et al.

Case New Holland involved an EEOC investigation into the employment practices of Case New Holland (CNH), a multi-state employer, to uncover possible age discrimination violations. The investigation began in 2011 when the EEOC interviewed countless CNH employees and toured the firm’s facilities. In conjunction with the initial interviews and tours, the EEOC asked for records relating to CNH’s hiring, firing, and promotion practices, payroll and benefits records, and applicant/employee evaluations. The company eventually turned over 6,000 pages of physical documents and 66,000 pages of digital records.

After a year and half of silence, the EEOC sent out a mass e-mail to over 1,000 current and former CNH employees. The e-mail contained a questionnaire asking, among other things, whether CNH had ever asked the individuals age-related questions and requested current phone numbers and addresses. CNH filed a lawsuit against the EEOC, claiming that the EEOC’s mass e-mail campaign was not only disruptive but also (i) an unauthorized investigation technique designed to force settlement, (ii) an unreasonable search and seizure, and (iii) an unauthorized use of CNH’s e-mail system constituting a government taking of property without compensation.

The Federal District Court for the District of Columbia disagreed with CNH and dismissed the suit. The court found that CNH failed to show that it was injured by the EEOC’s mass e-mails. Specifically, the court noted that CNH’s injury to business operations claim was too speculative and that CNH’s claim that the EEOC was trying to bully it into settlement was premature as the EEOC had not yet initiated settlement discussions.

KB Staffing and Case New Holland underline the broad and powerful tools at the EEOC’s disposal during agency investigations. Do not hesitate to contact Wyche should you have a question about dealing with an EEOC investigation.

The EEOC Settles Age Dispute Claim with a South Carolina Employer

The EEOC recently announced that it had settled a claim with Atchison Transportation Services, a South Carolina employer. Two 75-year-old drivers brought charges against Atchison Transportation Services, claiming that the firm had discharged them based on their age. Although Atchison claimed that their insurance policy would not carry individuals over age 70, the EEOC investigation found otherwise.

Atchison eventually agreed to settle the charges. As part of the settlement, Atchison had to pay $85,000.00 to the discharged employees and establish an anti-discrimination policy. Additionally, for two years from the settlement date, Atchison agreed to:

1) post a notice of the age discrimination charge and settlement in a conspicuous location in its offices;

2) provide annual anti-discrimination training to its employees and managers; and

3) distribute semi-annual reports to the EEOC detailing anyone 40 and over who was fired, why they were let go, the managers making the decision to let them go, and the discharged individual employees.

The EEOC’s settlement with Atchison is a great reminder that the EEOC’s investigatory and charge handling authority may lead to settlements that have other real and lasting consequences for employers beyond monetary payment. Wyche would be glad to help you establish or review internal procedures for handling EEOC charges and investigations.

NLRB Issues Informal Guidance on Workplace Policies

Wyche at Work has previously identified the National Labor Relation Board’s aggressive enforcement of non-unionized employees’ right to discuss the terms and conditions of their employment and their predilection to strike down seemingly innocuous workplace policies that it finds could be read to restrict employees’ rights. This month we would like to highlight a NLRB memorandum that was recently revised reaffirming the NLRB’s approach to evaluating the lawfulness of workplace policies.

The memo, written by an attorney from the NLRB’s general advice office, examines specific handbook provisions from a non-unionized employer to determine whether or not the provisions were acceptable under current NLRB law. Although the memo does not have the weight of law, it does offer insight on how the NLRB views and deals with workplace policies. More specifically, it provides two clear messages to employers:

1) avoid broad rules restricting employee conduct as such rules may be easily read to prohibit employees from discussing the terms and conditions of their employment; and

2) use precise language about and examples of prohibited conduct to make it clear to employees that their Section 7 rights will not be restricted.

In applying this message, the NLRB found that:

1) a workplace policy counseling employees to be respectful was unlawfully vague but that the same policy coupled with examples of disrespectful behavior (using abusive language and threats of violence) was permissible;

2) a workplace policy requiring employees who are discussing complaints to follow a strict chain of command was unlawfully broad as it could be read to prohibit employees from discussing the workplace informally and with one another but that the same policy suggesting employees follow a chain of command was permissible as it left room for employees to discuss the workplace outside of the chain of command;

3) a workplace policy requiring professional conduct was unlawfully vague but that the same policy coupled with examples of unprofessional conduct (theft, working under the influence of drugs/alcohol, sexual harassment) was permissible; and

4) a workplace policy prohibiting the discussion of confidential information was unlawful as it defined confidential information to include ordinary terms and conditions of employment like wages and hiring and firing decisions.

The NLRB’s advice memorandum highlights the need for carefully crafting workplace policies to ensure compliance with the NLRB’s exacting standards. Do not hesitate to contact Wyche should you have any questions about drafting or reviewing your workplace policies.

E-Verify News

E-Verify to Delete Records

The U.S. Citizenship and Immigration Services (“USCIS”) has announced that on January 1, 2015, the agency will begin disposing of E-Verify case records whose last transaction occurred on or before December 31, 2004. If you have E-Verify case records prior to that date, you may download and save a “Historic Records Report” to preserve information for each transaction. Note, however, that the report is available only from October 1 through December 31, 2014, so make sure you obtain the report before year-end. If you were not using E-Verify before December 31, 2004, the report will have no case information.

USCIS will continue to dispose of E-Verify records annually.  For example, on January 1, 2016, USCIS will dispose of case records created on or prior to December 31, 2005.  The USCIS website offers a Q&A and instructions for downloading the records report.

USCIS Launches Website for Employees

USCIS also announced the launch of myE-Verify, “a one-stop shop for employees to create and maintain secure personal accounts and access new features for identity protection.”  myE-Verify offers these new services:

  • myE-Verify accounts  – allows employees and applicants to manage the use of information in E-Verify and Self Check;
  • Self Lock – allows individuals to lock their social security numbers; and
  • myResources – educates employees concerning their rights and employer responsibilities in the E-Verify process.

Initially, myE-Verify accounts and Self Lock will be accessible to individuals in Arizona, Idaho, Colorado, Mississippi, Virginia, and the District of Columbia. USCIS plans to expand myE-Verify across the country with new features for employees and job seekers.

Need Help? Take Advantage of Free Webinars

Whether you have been overwhelmed from the beginning or want to stay current on recent developments, you may want to access the USCIS’ free online webinars covering Form I-9 and E-Verify. Webinars are offered throughout the month on various topics geared to employers as well as employees. The presentations for employers cover how-to demonstrations and recent updates to the programs, and participants can download the materials for later reference.

Happy Halloween from Wyche at Work!

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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