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Employment Law Update – Fall 2019

By Labor & Employment

THE CONTINUING RISE OF RETALIATION CLAIMS

Retaliation has been the most frequently alleged claim filed with the Equal Employment Opportunity Commission (EEOC) since 2009 and has been steadily growing over the last decade. Whereas in 2009, a little more than one-third of EEOC charges included a claim of discrimination, retaliation claims hit a new high in 2018 when 51.6% of all charges filed contained a claim of retaliation. In 2018, the EEOC collected almost $200,000,000 for claimants bringing retaliation claims. This accounts for almost 57% of the total amount collected by the EEOC in 2018.

Retaliation occurs when an employer takes a materially adverse action because an applicant or employee asserts rights protected by the EEO laws. Generally, to engage in protected activity, an employee has to either participate in an EEO process (such as filing an internal complaint or EEOC Charge of discrimination) or reasonably oppose conduct made unlawful by an EEO law (such as complaining to the employer about discrimination). An employer engages in retaliation when it takes an action against an employee that might deter a reasonable person from engaging in protected activity.

Employment decisions involving terminations, demotions, and discipline are still common actions leading to claims of retaliation. However, less drastic conduct can serve as the basis for retaliation claims. For example, the federal appellate court overseeing Virginia recently held that denying an employee voluntary overtime on the heels of the employee’s complaint about sexual harassment by her supervisor could be a retaliatory adverse action. In another Virginia case, a judge found that requiring an employee to clean areas of a store that were already clean and to keep a work log that no other employees were required to keep could be sufficient to constitute retaliation. This trend of increasing retaliation claims based on less drastic conduct is especially significant when you consider that an employee does not even have to be successful on his/her underlying discrimination or harassment claim to win on a retaliation claim in court.

This increasing risk means employers must be more vigilant than ever in combating instances of workplace retaliation. Specifically, employers should keep the following in mind:

  • Know the law on retaliation. It is hard to fight a problem when you do not understand it. Towards this end, the EEOC’s Enforcement Guidance on Retaliation and Related Issues, which was issued about three years ago, is a useful resource for employers striving to eliminate retaliation in its workplace. The Guidance can be found here.
  • Adopt anti-retaliation policies. As part of their non-discrimination and anti-harassment policies, employers must make clear that retaliation for reporting suspected discrimination or harassment will not be tolerated. Such policies should also make clear that anyone experiencing or witnessing alleged retaliation should report it to management or HR.
  • Conduct training for your supervisors and employees on retaliation and your policies prohibiting it. All employees need to know that retaliation will not be tolerated and how to report it under the employer’s policies. Supervisors should receive separate, more detailed training on the specifics of retaliation and their roles in watching for and ensuring that retaliation does not occur.
  • Make sure you are documenting it all. To quote more than one EEOC representative, “if it’s not written down, it never happened.” This sentiment seems to hold true with judges and juries too. Employers, therefore, need to make sure that they have adopted effective documentation procedures – both for employee issues and complaints – and hold their supervisors accountable for complying with such procedures. The lack of documentation has cost many employers greatly over the years.

PRACTICAL POINTER

To be clear, employees are not shielded from poor work performance or misconduct simply because they engaged in protected activity. Employers can discipline or terminate employees for insufficient performance or misconduct, even when the employee has filed an EEO complaint, so long as the conduct is motivated by well-documented legitimate reasons, and not retaliatory reasons. But, always remember that the EEOC, judges and juries all understand that it is basic human nature to retaliate against someone who has complained about you.

DYNAMIC DIVERSITY TRAINER TO SPEAK AT K&C “EMPLOYMENT LAW CASINO” SEMINAR

Mauricio Velasquez is a nationally-recognized diversity trainer who is President and CEO of The Diversity Training Group. Mauricio will be a featured luncheon speaker at the first showing of the 36th Annual Employment Law Update to be held on November 21, 2019, at the Virginia Beach Convention Center. He will be providing attendees with a new way employers are dealing with workplace risk – Emotional Intelligence. Mauricio will not only let employers know what Emotional Intelligence is, but he will provide guidance on how attendees can improve their Emotional Intelligence and use it to reduce employment risk.

As always, the 36th Annual Update will provide attendees with an educational and entertaining program to include speakers from key employment agencies who will help present a number of timely workshop topics. For example, the Acting District Director/Charlotte for the Equal Employment Opportunity Commission (EEOC), Tom Colclough, will be joining a member of the K&C Employment Team to provide attendees with guidance on how to avoid the most commonly filed EEOC claim-retaliation. Other useful topics to be presented will include: dealing with workplace violence, handling problem absenteeism, conducting effective misconduct investigations and guidance on performing self-audits. In keeping with the seminar’s theme of “Dealing with Risk in the Employment Law Casino,” reducing employer liability will be a primary goal of each workshop. As always, attendees will have the opportunity to ask any and all employment law questions throughout the day and our speakers will be available for more private consultation in the ever-popular K&C “Answer Booth.”

The day will be stacked with fun games and chances to win prizes and attendees can earn 6 HRCI recertification credits and/or 5 SHRM PDCs. In addition, one lucky attendee will win a valuable gift certificate at the end of the day to go towards their own casino adventure or gift of their choosing. For more information or to register, visit http://www.kaufcan.com/events or call 757.624.3232.

OBESITY ALONE IS NOT A DISABILITY

Over the past two decades, multiple courts have concluded that obesity is not a disability under the Americans with Disabilities Act (ADA), unless it is caused by an underlying physiological condition. Most recently, a federal court of appeals sitting in Illinois, Indiana, and Wisconsin held in Richardson v. Chicago Transit Authority that a bus driver who weighed over 400 pounds did not have a disability. This decision follows decisions by three other federal appellate courts which came to the same conclusion: obesity is not automatically a disability.

The Richardson case involved a bus driver who was unable to operate a bus safely because he could not make hand-over-hand turns; he was not able to see the floor while seated; part of his body did not fit in the seat, and the driver’s seat deflated when he sat down. When the bus driver was terminated by his employer, he claimed that his separation was motivated by disability discrimination and that his morbid obesity qualified as a disability. The federal court of appeals disagreed, stating that because the bus driver did not present any evidence that his obesity was caused by an underlying physiological condition, the bus driver was not disabled. Although the bus driver argued that obesity itself is a physiological disorder because the medical community considers obesity to be a disease, the Court held that such an argument would grant all obese individuals an ADA impairment. The Court stated, among other things, “the ADA is an antidiscrimination – not a public health – statute, and Congress’s desires as it relates to the ADA do not necessarily align with those of the medical community.”

PRACTICAL POINTER

As a practical matter, HR professionals dealing with extremely obese employees should not automatically assume that the employee is disabled. Consider first whether the employee’s obesity is caused by an underlying condition before making an employment decision. If, for example, the above-referenced bus driver’s obesity had been caused by some underlying physiological disorder or condition, then the employer would have needed to go through an interactive process to determine if the bus driver could perform the essential functions of his job, with or without reasonable accommodation.

EMPLOYEE’S GAIN NEW RIGHT TO PERSONNEL RECORDS

Effective July 1, 2019, employers are now required to provide certain portions of an employee’s personnel file to current or former employees upon request. On July 1, the amendments to Virginia Code Section 8.01-413.1 took effect. Under those amendments, upon receipt of a written request, an employer is required to provide to an employee, or former employee, records reflecting the following information: (1) the employee’s duties of employment with the employer; (2) the employee’s wages or salary during employment; (3) the employee’s job description and job title during employment; and (4) any injuries the employee sustained during the course of employment with the employer.

Should an employer fail to comply with an employee’s written request for such records, an employee may have a subpoena for those documents issued by the Court in which an eventual suit would be filed, or an attorney may issue a subpoena for such records in a pending lawsuit. If the Court determines that an employer willfully refused to comply with the written request or imposed an excessive charge for processing the request and providing copies, the Court may award damages for expenses incurred in obtaining copies, including a refund of any fees the employee already paid, court costs, and reasonable attorney’s fees.

This new legal requirement dramatically changes the long-held position Virginia employers have taken that all personnel records are the employer’s property and that employers can dictate when records need to be provided to current and former employees. While Virginia employers still do not have to provide unfettered access by employees to personnel files, specific portions of the file will need to be provided so long as a written request is made by a current or former employee for such records.

FYI

This legal right to certain personnel records is not the only change in the law with which Virginia employers must begin to comply. Effective January 1, 2020, almost all Virginia employers will be legally required to provide each employee with a written statement, by a paystub or online accounting, showing the name and address of the employer, the number of hours worked during the pay period, the rate of pay, the gross wages earned by the employee during the pay period, and the amount and purpose of any deductions. As a practical matter, many employers already comply with this requirement, but compliance will be legally required beginning in 2020. To help employers understand what documents must now be maintained and/or provided to employees, a workshop will be presented on personnel files and record retention on November 21, 2019, as part of the 36th Annual Employment Law Update. To register, visit http://www.kaufcan.com/events or call 757.624.3232.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2019.