Employment Law Update – Summer 2018
RETALIATION CLAIMS ON THE RISE
Retaliation has been the most frequently alleged claim in Charges of Discrimination filed with the Equal Employment Opportunity Commission (EEOC) since 2009. In 2017, retaliation claims hit a new high when approximately half 48.8% to be precise — of all charges filed contained a claim of retaliation. This trend of increasing retaliation claims is especially significant when you consider that an employee does not have to be successful in his/her underlying discrimination or harassment claim to win on a retaliation claim in court.
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 adverse 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, a Judge in a recent Virginia case 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. In another Virginia case, the court found that by placing an employee on a performance improvement plan, the non-compliance with which led to the employee’s termination, could be retaliatory.
Given the increasing number of retaliation filings and less severe conduct giving rise to such claims, employers must be more vigilant than ever in combating instances of workplace vengeance. 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 issued its Enforcement Guidance on Retaliation and Related Issues about two years ago. In releasing its Guidance, the EEOC noted that it sets forth the EEOC’s interpretation of the law on retaliation. As such, the EEOC’s Guidance is a useful resource for employers striving to eliminate retaliation in their workplace. See Guidance here.
- Adopt anti-retaliation policies. As part of their non-discrimination and anti-harassment policies, employers must make clear that retaliation against those that report 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. Above all, make it clear to complaining employees and their supervisors that retaliation of any type will not be condoned.
- 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 company’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. Time and again, we have heard from many EEOC representatives, 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.
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. In the process, remember that the EEOC, Judges, and Juries all understand that it is human nature to want to get even with someone who has complained about you.
RINGTONE RISKS FOR THE UNWARY
Smartphones in the workplace have caused their issues over the years. From concerns about decreased productivity due to time spent on social media to inappropriate text messages to after-hours work resulting in the need to pay overtime, smartphones have been in the middle of it all. But a new case filed in Memphis reveals another risk related to smartphone use in the workplace.
Audrey Arrindell was a female engineer for Trane at a facility in Tennessee. Arrindell alleged that her supervisor, Bill Kennedy, had a very distinct ringtone on his phone the sound of a woman having an orgasm and that he played this ringtone for Arrindell. Arrindell claims she told her supervisor she found the ringtone offensive, but he kept playing his ringtone for Arrindell and tried to engage her in sexual discussions, all of which led Arrindell to complain to HR.
Unfortunately, according to Arrindell, Trane’s HR representative kept putting off Arrindell’s complaints and never conducted an investigation. However, when her supervisor learned of the complaints, Arrindell asserted that he went into vengeance mode, assigning Arrindell to perform daily work in the warehouse, ignoring her, talking over her in meetings, giving her a negative performance review, and placing her on a performance improvement plan. HR finally removed her from Kennedy’s supervision but placed her under a non-engineer who did not understand her work and routinely consulted with Kennedy about Arrindell’s performance.
Now, Trane is facing a lawsuit in federal court in Memphis by Arrindell for sexual harassment and retaliation. And it all started with a ringtone!
HR EMOJI TRANSLATORS NEEDED
Almost everyone with a smartphone uses them, and you’ve probably already sent or received one today emojis. They’ve become commonplace in our texting vernacular, but should you be concerned about how your employees are using emojis? Perhaps so, according to a Bloomberg Law analysis which found that mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017.
At times, seemingly innocuous emojis can have hidden innuendos and meanings. Take for example a corn cob emoji. Most people would not assume that a corn cob is a vulgar reference to sex, but that was just what one plaintiff alleged in a harassment complaint. In a lawsuit filed against celebrity Top Chef contestant Mike Isabella, a woman alleged she received a corn cob emoji from Isabella after she overheard him describing a woman as so hot, [he’d] eat the corn out of her s_ _ t.
On the other hand, employers have used emojis to get lawsuits thrown out. If a male supervisor sends sexually explicit text messages to a female subordinate, and the female subordinate responds with a winking emoji and a kissing emoji, does that mean the female subordinate was welcoming the behavior? Maybe. In at least one case, a female worker’s response of a smiley emoji was deemed proof that she was not offended by a coworker’s texts.
Faced with changing meanings and the ongoing creation of new emojis, employers may be tempted to ban emoji use in the workplace altogether, but this is unworkable if not impossible. Instead, employers should remind employees that all communications even emoji use must be in compliance with company policies, including policies prohibiting discrimination and harassment.
OBAMACARE PENALTY NOTICES ON THE WAY
Beginning with calendar year 2015, large (50+) employers have had to comply with the ACA’s employer mandate to offer adequate and affordable health insurance to their full-time employees or face possible tax penalties (technically Employer Shared Responsibility Payments or ESRP). Covered employers have been required to file forms with the IRS reporting compliance with the ACA mandate annually since then.
Despite having received the 2015 forms over 2 years ago, the IRS has only recently completed its analysis of the 2015 filings. In that regard, the IRS has identified over 100,000 employers who they believe owe approximately $4.3 billion in ACA employer penalties for calendar year 2015 alone. Accordingly, the IRS has started issuing proposed ACA penalty assessments which arrive by mail in the form of a 10+ page package which begins with the bold headline Proposed ESRP.
Although the ESRP notice typically assesses a fairly large penalty, it also contains a response form offering the employer the opportunity to respond within 30 days and provide proof that the penalty amount proposed by the IRS is incorrect. Our experience to date in helping employers respond to these notices is that in almost every case the IRS proposed penalty was substantially reduced, in most instances to zero.
So if you’re the unfortunate recipient of an IRS ESRP proposed penalty assessment do not panic! It’s highly likely the amount sought is substantially or entirely overstated. What’s important is to make sure a proper response is prepared and filed within the 30 day deadline, otherwise the penalty will automatically be assessed and then cannot be appealed or contested prior to payment and filing of a suit for refund.
We anticipate the IRS will continue to issue 2015 ESRP letters over the remaining months of 2018 and then move forward with penalty assessments for the 2016 year. If you receive a penalty notice and have any questions, your friends at Kaufman & Canoles are ready to assist you in any way we can.
34th ANNUAL EMPLOYMENT LAW UPDATE – FINAL SHOWING
If you missed the first two showings of our 34th Annual Employment Law Seminar – K&C Office Party, you’re in luck, our third and final showing of this program will be held at the Hampton Roads Convention Center on July 19th. The seminar will feature sessions on important and timely legal topics including handling unemployment claims, effective documentation, #MeToo Gender Quake, and more. In addition, our luncheon speaker, Jamie Shoemaker, a plaintiff’s lawyer who sues employers, will give attendees a glimpse of what he looks for when deciding to bring an employment claim against a company.
Attendees can earn up to 6 credit hours toward PHR and SPHR for HRCI and 5 PDCs toward the SHRM-CP or SHRM-SCP. In addition, one lucky winner will win a $350 gift card to host his/her own office party at Tradition Brewing in Newport News. To register, click here 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.