Employment Law Update - Spring 2015

August 21, 2015, 10:02 AM

EMPLOYEES TOP GUN PROVIDES INSIGHTS TO K&C SEMINAR ATTENDEES James Shoemaker regularly sues employers on behalf of his employee clients. So his being a featured speaker at a seminar presented for the benefit of employers may have been unexpected by attendees of K&Cs 31st Annual Employment Law Update on November 13, 2014 at the Virginia Beach Convention Center. But Mr. Shoemaker provided attendees with a valuable perspective and guidance on how to avoid being sued by lawyers like him.

Mr. Shoemaker told attendees that he accepts a very small percentage of the employee claims that he reviews. He indicated that the cases he accepts generally have compelling and sympathetic facts that involve clear violations of laws governing employers legal obligations. Mr. Shoemaker noted that he prefers cases that involve groups of employees as opposed to one employee who simply feels he or she was treated unfairly. He noted that Virginia law governing at-will employment makes it very difficult to win cases based solely on fairness.

Mr. Shoemaker described a number of cases where he obtained good results for groups of employees as a result of rogue supervisors who either were not properly trained or simply refused to comply with policies implemented by employers. He noted that jurors can identify with victims of workplace harassment and mean-spirited supervisors. To avoid negative results like these, Mr. Shoemaker stressed that employers should make sure supervisors are properly trained. He added that employers might need to monitor their supervisors to make sure they are complying with company policies.

Mr. Shoemaker also commented on the recent rise in cases involving groups of employees complaining of not being paid properly as well as the increase in disability cases filed under the Americans with Disabilities Act (ADA). He indicated that the wage claims of groups of employees many times result from a failure to follow what are sometimes technical requirements of applicable federal wage laws. Mr. Shoemaker added that the broadening of what constitutes a disability under the ADA Amendments Act of 2008 (ADAAA) has led to more cases filed for disability discrimination. He indicated that with the ADAAA, the battleground for these cases has shifted to whether or not the employers have met their duty to accommodate disabilities.

After his presentation, Mr. Shoemaker answered a number of questions from the audience and, immediately thereafter, spent some time in the K&C Answer Booth addressing questions that attendees may have been a little reluctant to ask in an open setting. All in all, the attendees appreciated the opportunity to hear the perspective of a lawyer who sues employers.

Practical Pointer

The K&C Employment Team, which only represents employers, firmly believes that providing different perspectives like Mr. Shoemakers helps employers avoid workplace liability. That is why a number of current and former representatives of government agencies that enforce employee rights will be on hand at the April 16th showing of the 31st Annual Employment Law Update at the Greater Richmond Convention Center along with another top plaintiffs lawyer, David R. Simonson, Jr., who, like Mr. Shoemaker, specializes in suing employers.

EEOC Files Landmark Transgender Discrimination Lawsuits This past September, the Equal Employment Opportunity Commission (EEOC) filed lawsuits against a funeral home in Michigan and an eye care clinic in Florida alleging discrimination against male-to-female transsexual workers in violation of Title VII. These lawsuits mark the first time the EEOC has sued under Title VII, accusing a private sector employer of sex discrimination based on actions taken against a transgender worker. In these lawsuits, the EEOC claimed that workers who were transitioning from male to female were discriminated against because they are transgender and/or did not conform to their employers gender or sex-based stereotypes, expectations, or preferences.

The Michigan case involved the claim of Funeral Director/Embalmer Amiee Stephens. She claimed that after she revealed she was undergoing a gender transition from male to female and planned to start wearing female business attire at work, her employer told her that what she was proposing to do was unacceptable and fired her. In announcing the lawsuit, a spokesperson for the EEOC indicated Title VII prohibits employers from firing employees because they do not behave according to the employers stereotypes of how men and women should act, and this includes employees who present themselves according to their gender identity.

In the Florida case, the EEOC claimed an eye clinic confronted its Director of Hearing Services after he began wearing makeup and womens tailored clothing to work. When this employee informed his employer he was undergoing a gender transition, all but one of the clinics doctors stopped referring patients to him, depriving him of his client base. The eye clinic then fired this employee claiming it was eliminating the Director of Hearing Services position, but two months later it hired a male employee who conformed to traditional male gender norms, according to the EEOC.

The EEOC lawsuits are but the latest in a growing trend of legal developments recognizing civil rights for transgender workers. This past summer, President Obama issued Executive Order 13,672 prohibiting federal contractors from discriminating against lesbian, gay, bisexual, and transgender employees and job applicants. Also, the Labor Departments Office of Federal Contract Compliance Programs subsequently released a new agency directive clarifying that sex-based job discrimination under another Executive Order includes bias based on gender identity and transgender status. The EEOCs more recent lawsuits are consistent with its Strategic Enforcement Plan. Under that plan, the EEOC has stated that a top enforcement priority is furthering coverage of lesbian, gay, bisexual, and transgender individuals under Title VII sex discrimination provisions.

SOMETIMES, ITS OKAY TO FIRE AN EMPLOYEE WHO HAS A PENDING EEOC CLAIM

Human resource professionals are usually very leery, and rightfully so, of counseling managers to terminate the employment of a worker who has just filed a Charge of Discrimination. But a recent case reminds us that even this cautionary principle has its limits.

In Curley v. City of North Las Vegas, the plaintiff was a long-time employee of the City of North Las Vegas, working as a pretreatment inspector cleaning sewers. Although he had received reprimands over the course of his employment, he remained an employee in good standing. The employee apparently developed a hearing impairment and requested an accommodation, but it was denied and he filed an EEOC Charge. The very next month, the employee made another, separate request for a different accommodation keeping him away from a noisy truck which the City also denied. As part of an investigation, a physician found the plaintiff fit for duty and ready to return to work. But the City fired the employee, who sued.

Long-term employee; pending EEOC Charge based on denied request for accommodation; another request for accommodation denied the next month; employee fired promptly thereafter despite medical ability to return to and perform work sounds like possible illegal retaliation. That is until further facts were considered. It turns out that shortly after the second request for accommodation was made, the employee was accused of making threats to co-workers. An investigation into that issue disclosed that the employee had threatened to kick out a co-workers teeth; threatened to put a bomb in a workers car and threatened to shoot out the kneecaps of his supervisors minor children. Although the physicians report concluded that the employee did not pose a future safety threat (what was that doctor thinking?), a federal court of appeals held that the City acted properly in firing him. He was not fired solely because he might pose a danger in the future, but also because the threats themselves were a sufficient reason for termination whether or not he really meant to carry them out.

Practical Pointer

When an employee files a charge, or a complaint, or is denied a requested accommodation, management needs to monitor the situation to ensure that no retaliation occurs. But sometimes, discharge is clearly warranted. An assertion of discrimination should never be treated by employers as a get out of jail free card for employee misconduct. In this case, the employer also had the great good sense to muster evidence as to all of the reasons the employee was fired, not only the most critical or the one closest in time to the termination.

THE CRACKDOWN ON EMPLOYEE MISCLASSIFICATION CONTINUES In an attempt to minimize overhead, an employer may seek to utilize independent contractors, as opposed to employees, to achieve operational goals. The use of independent contractors seemingly enables an employer to avoid payroll taxes, overtime payments, unemployment insurance, workers compensation insurance, benefits, and other costs that are otherwise associated with employees. However, an employer must be certain that its independent contractors are not really misclassified employees. If the realities of the working relationship, including the employers degree of control over the worker, establish that the worker was misclassified, the employer may be faced with substantial damage claims from a complaining worker (or even worse, a group of workers).

The United States Department of Labor (DOL) has taken a keen interest in this issue. It has launched its own Misclassification Initiative and has publicly announced that independent contractor misclassification will continue to be a key enforcement issue in 2015. In addition, employers of all sizes and in all industries have been hit with lawsuits seeking damages for alleged misclassifications. For example, Lowes Home Centers recently reached a multi-million dollar settlement in a federal lawsuit brought by a group of home improvement contractors who claimed that, despite being characterized as independent contractors, they acted as employees and were entitled to employee pay and benefits. Likewise, a Federal Appeals Court recently ruled that 2,300 FedEx Ground delivery drivers were improperly classified as independent contractors. This decision may require FedEx to pay its delivery drivers hundreds of millions of dollars in damages.

Employers should take heed and closely analyze all independent contractor classifications to ensure compliance with applicable laws. As seen by the results of recent lawsuits and DOL investigations, the short term cost savings may be severely outweighed by the risk of potential damages should the classification be deemed improper.

NEW RICHMOND EEOC DIRECTOR TO BE FEATURED AT THE RICHMOND SHOWING OF THE 31ST ANNUAL EMPLOYMENT LAW SEMINAR

K&Cs Annual Employment Law Update returns to the Greater Richmond Convention Center on April 16, 2015 with new employment law information featuring the new Richmond EEOC Director, Daron Calhoun. Topics will include the latest on the ADA, Obamacare, outrageous cases and more. Attendees will have the opportunity to consult with Mr. Calhoun and other relevant experts in our ever popular Answer Booth.

In keeping with this years reality TV theme, attendees will have a chance to win a 48 flat screen TV and earn 6 HRCI credits. For more information or to register, contact Andrea King at 757.624.3232 or adking@kaufcan.com.