New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

The subpoena power of the EEOC is very broad, and entitles the EEOC to obtain information relevant to its investigation of a charge of discrimination. But a federal district court recently concluded that there are limits to that power, and that it does not necessarily entitle EEOC to obtain information about corporate-wide policies or other potential claimants when the information sought will not shed light on the charge it is investigating.

The case arose when the former employee of a nursing home owned by the University of Pittsburgh Medical Center (“UPMC”) filed a charge of disability discrimination. According to the Court’s opinion, the nursing home responded to the charge by contending the former employee had been discharged pursuant to a policy which provided for a maximum medical leave of 14 weeks. The EEOC then served a subpoena on UPMC, not just the nursing home, demanding production of information on every UPMC employee, not just nursing home employees, terminated pursuant to the policy since July 1, 2008. UPMC has approximately 48,000 employees, the nursing home 170.
 

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Two recent cases show that whether the NLRB will issue a complaint in a case involving discharge for misusing social media may depend on the content of the “post” or “tweet.” In a departure from recent aggressive enforcement activity in the realm of social media, the National Labor Relations Board’s Division of Advice recently concluded that an Arizona newspaper’s termination of a crime and public safety beat reporter for inappropriate and offensive “tweets” was not a violation of federal labor law. According to the Division of Advice’s April 21, 2011 Advice Memorandum, The Arizona Daily Star had encouraged its reporters to open Twitter accounts and “tweet” on newsworthy stories to reach a greater audience and improve traffic to the newspaper’s website. The reporter opened an account, identified himself as a Daily Star reporter, and began “tweeting” on various subjects and stories. After posting a sarcastic remark about his “witty and creative” editors, he was instructed by management not to air his grievances or comment about the newspaper in any public forum. Although he abided by that restriction, he went on to post several crass and controversial tweets about his public safety beat, including the following: (i) “You stay homicidal, Tucson. See Star Net for the bloody deets[;]” and (ii) “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.” He also posted a derisive tweet about the “stupid people” at a local TV station, prompting a complaint from the station to the Daily Star.

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More than two years ago, the ADA Amendments Act (the “ADAAA”) of 2008 went into effect. The statute was designed to broaden the coverage of the Americans with Disabilities Act. Earlier this year, the EEOC issued long-awaited and much-debated final regulations to implement the ADAAA. In conjunction with the release of the regulations, the EEOC also released an appendix to the regulations containing examples, a fact sheet on the regulations, a question and answer document and a small business question and answer document.   The regulations are effective on on May 24, 2011.

The final regulations eliminate or change many of the more controversial proposed regulations to which employer representatives objected during the notice and comment period. One item which continues to cause controversy, however, is EEOC’s list of so-called “per se disabilities,” impairments that have been characterized as automatically qualifying as covered disabilities. EEOC has created this list through a series of rules of construction used to analyze whether a particular impairment is a disability. The regulations explain that in using these rules of construction, some impairments, such as epilepsy, diabetes, cancer and bipolar disorder, to name a few, will virtually always constitute disabilities. However, the regulations do provide that an individualized assessment is still required in every case.
 

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The U.S. Supreme Court’s recent decision in Staub v. Proctor Hospital is a timely reminder of the importance of conducting thorough and objective workplace investigations. By holding that an employer may be liable based on the discriminatory animus of a supervisor who influenced, but did not ultimately make, an adverse employment decision, the case resolves a split in the various U.S. Circuit Courts of Appeals concerning the so-called “cat’s paw” theory of discrimination.

Staub, an Army Reservist, sued his former employer under the Uniformed Services Employment and Reemployment Rights Act (USERRA), arguing that his termination was caused by his supervisor’s obvious hostility to his military obligations. Although the ultimate decision maker was not similarly biased, the plaintiff argued that the employer was nevertheless liable under a “cat’s paw” theory: that the unbiased supervisor was the dupe or tool of the biased supervisor. The Seventh Circuit Court of Appeals rejected the plaintiff’s argument and dismissed the case on summary judgment. The Supreme Court reversed, ruling that an employer can be liable under a “cat’s paw” theory if it can be shown that the supervisor’s bias was a proximate cause of the challenged employment action. The case was remanded to the lower court for further consideration.
 

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On Monday, the United States Department of Labor (DOL) released a smartphone App that is essentially a timesheet to help employees independently track the hours they work and determine the wages they are owed. The App is available here.

With this App (available in English and Spanish), employees can track regular work hours, break time and any overtime hours. As promoted by the DOL - "This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records."
 

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Recently, the United States Department of Labor’s Wage and Hour Division (“DOL”) published final revisions to its Fair Labor Standards Act (“FLSA”) regulations. The long-awaited amendments, which became effective on May 5, 2011, are based on a proposed rule originally published in the Federal Register on July 28, 2008. For the most part, the final rule does not impose new requirements on employers, but instead clarifies existing rules and changes outdated information.

Some of the more noteworthy amendments relate to “tipped” employees. Specifically, the final rule clarifies that: (1) tips are the property of the employee, whether or not the employer has taken a tip-credit; (2) the employer is prohibited from using an employee’s tips for any reason other than a tip-credit or a valid tip pool; and (3) prior to utilizing the tip-credit, the employer must inform its tipped employees of the tip-credit requirements contained in section 3(m) of the FLSA. The final rule also clarifies that a valid tip pooling arrangement may only include those employees who customarily and regularly receive tips, even if the employer takes no tip-credit and instead pays the tipped employee the full minimum wage. The amendments further state that while the FLSA does not impose a maximum contribution percentage on mandatory tip pools, an employer must notify its employees of any required tip pool contribution amount and may only take the tip-credit for the amount of tips each employee ultimately receives.
 

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Does this sound familiar? An employee fired for cause, who is either unable or unwilling to accept responsibility for his/her own poor performance, commences litigation claiming unlawful discrimination. The pending litigation forces the employer into a Morton’s Fork dilemma of either: (1) paying an in terrorem settlement to avoid the exorbitant costs of discovery, subsequent motion practice and potential trial; or (2) incurring the exorbitant costs of discovery, subsequent motion practice and potential trial to hopefully win the case several years down the road.

Unfortunately, this scenario has become all too familiar to employers. Until recently, the predicament facing employers has largely been a function of the ease with which a would-be plaintiff employee may patch together a complaint and survive a motion to dismiss. Indeed, forcing an employer into time consuming and expensive litigation has been merely a matter of asserting the following conclusory, false syllogism: (1) I am a member of a protected class (as is literally everyone); (2) I was terminated from my job; (3) therefore, I was terminated from my job because I am a member of a protected class.

Fortunately, however, two recent cases from federal courts in New York may evidence an emerging trend of taking a more favorable view of motions to dismiss in employment discrimination cases, a trend that may help employers avoid the difficult choice between settling early or enduring the expense of prolonged litigation 

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