The U.S. Government Shutdown's Impact on Employers and Employees

I felt like I was watching a New Year's Eve special last night with all the countdowns to midnight. Unfortunately (or fortunately) there was no Ryan Secrest,no ball dropping, and no confetti. Instead, the count down was for when the government would "officially" shutdown. 

Regardless of who you believe should be blamed (I'll start with the politicians), there is no dispute that employers and employees will need to be aware of what the government shut down means for their respective interests. Here is an overview of what they can expect:  
The U.S. e-Verify program will be shutdown. The e-Verify system allows employers to voluntarily check the legal work status of its employees. For context purposes, more than 21 million requests were filed through the system during FY2012. 
Enforcement of Wage and Hour laws. The Department of Labor's ("DOL") Wage and Hour Division is responsible for enforcing federal wage and hour laws. While these laws will remain in effect, the DOL will likely suspend operations during the government shutdown. 
Unemployment benefits will likely continue. It has been reported by the Department of Labor that the Federal Employment and Training Administration "will continue to provide essential functions, as occurred during the shutdown of 1995." 
Workplace dispute cases would not be resolved until after the shutdown, as the National Labor Relations Board would halt all case handling.
Federal Courts will probably be open for the next ten days before shutting down. According to a statement released Thursday t federal courts will remain open for about 10 business days after a shutdown begins and would reassess its situation around Oct. 15, 2013. All proceedings and deadlines would remain as scheduled, and the electronic filing system for documents with courts would remain operational. In case you are worried, Supreme Court Justices, U.S. magistrate judges, and U.S. bankruptcy judges would continue to be paid in the absence of funding.
National labor Relations Board will shut down. The NLRB oversees union-organizing elections and under certain circumstances, resolves workplace disputes. But with the shutdown, the NLRB's case handling will be suspended during the government shutdown. Outreach and public affairs would also cease. Also, all but 11 of the agency’s  1,611 employees would be furloughed. Those 11 would be retained to protect life and property.
The Equal Employment Opportunity Commission. According to the EEOC's website, "only activities involving the safety of human life or the protection of property will continue." Perhaps more informative is the EEOC's explanation of what it will not be doing during the shutdown; According to the webiste, the EEOC: 
Staff will not be available to answer questions from the public, or to respond to correspondence from the public.
While we will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown, these charges will not be investigated.
Insofar as the courts grant EEOC's requests for extensions of time, EEOC will not litigate in the federal courts.
Mediations will be cancelled.
Federal sector hearings will be cancelled, and federal employees' appeals of discrimination complaints will not be decided.
Outreach and education events will be cancelled.
No FOIA requests will be processed
While employers and employees will in large part be negatively impacted to some degree during the government shutdown, we can at least take comfort in the knowledge that our politicians will still get paid. The 27th Amendment to the Constitution, ratified in 1992, holds that "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened." The amendment protects members from a pay cut. But given the body of work for most of our politicians, I think we all agree we should be talking about a pay raise - probably something politicians on both sides of the political divide can agree on. 
This includes preserving the rights of aggrieved individuals under the federal employment discrimination statutes by docketing new charges and federal sector appeals; continue to litigate lawsuits where a continuance has not been granted; examine new charges to determine whether prompt judicial action is necessary to protect life or property and, if appropriate, file such action to obtain preliminary relief; maintain the integrity and viability of EEOC's information systems; maintain the security of our offices and property; and perform necessary administrative support to carry out those excepted functions. 

American Flag.jpg

Regardless of where you place blame for this shutdown (I'll start with the politicians), the fact remains that both employers and employees will need to deal with the consequences of this government shutdown. Here is an overview of what they can initially expect:

  1. The U.S. e-Verify program will be shutdown. The e-Verify system allows employers to voluntarily check the legal immigration status of its employees. This program will not be available during the shutdown. Employers need to be aware that they may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown.
  2. Enforcement of Wage and Hour laws. The Department of Labor's ("DOL") Wage and Hour Division is responsible for enforcing federal wage and hour laws. While these laws will remain in effect, the DOL will suspend operations during the government shutdown. Here is a complete contingency plan put out by the DOL.
  3. Unemployment benefits will continue. It has been reported by NPR that unemployment benefits will still be distributed. 
  4. Federal Courts will operate for approximately 10 days and then a "wait and see" approach. The federal courts will probably be open for the next ten days before shutting down according to a statement from the United States Court's webpage. All proceedings and deadlines would remain as scheduled, and the electronic filing system for documents with courts would remain operational. In case you are worried, Supreme Court Justices, U.S. magistrate judges, and U.S. bankruptcy judges would continue to be paid in the absence of funding.
  5. National labor Relations Board will mostly shut down. The NLRB oversees union-organizing elections and under certain circumstances, resolves workplace disputes. The NLRB's case handling will be suspended during the government shutdown. Outreach and public affairs will also cease. In fact, all but 11 of the agency’s 1,611 employees would be furloughed. Those 11 would be retained to protect life and property.
  6. The Equal Employment Opportunity Commission will mostly shut down. According to the EEOC's website, "only activities involving the safety of human life or the protection of property will continue." Perhaps more informative is the EEOC's explanation of what it will not be doing during the shutdown; According to the website:
  • EEOC staff will not be available to answer questions from the public, or to respond to correspondence from the public.
  • While the EEOC will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown, these charges will not be investigated.
  • To the extent that courts grant requests for extensions of time, the EEOC will not litigate such cases in the federal courts.
  • EEOC Mediations will be cancelled.
  • Federal sector hearings will be cancelled, and federal employees' appeals of discrimination complaints will not be decided.
  • Outreach and education events will be cancelled.
  • No FOIA requests will be processed

Not All Doom and Gloom .... for Politicians  

While employers and employees will in large part be negatively impacted to some degree during the government shutdown, we can at least take comfort in the knowledge that our politicians will still get paid. The 27th Amendment to the Constitution, ratified in 1992, holds that "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened." The amendment protects members from a pay cut.

Given the body of work for most of our politicians, I think we all agree we should be talking about a pay raise - probably something politicians on both sides of the political divide can agree on.

Please contact Jason Shinn directly with any questions about how your employment law matters and services will be affected during the government shutdown or with any other federal or Michigan employment law questions.

"Women Are Teachable" Gender Stereotypes, Then & Now.

Women are Teachable.jpg

Labor Day is generally considered a time to recognize the social and economic achievements of U.S. workers. And a significant amount of this achievement is due to opportunities presented by removing overt discriminatory barriers to employment.  

But it is also important to realize that many employment-related statutes were passed - in part - to combat less overt barriers such as stereotypes that blocked women and others from obtaining equality in the work place. 

Anti-Employment Discrimination Statutes Generally Prohibit Making Employment Decisions Based on Stereotypes 

Consider for example, Michigan's Elliot-Larsen's Civil Rights Act’s ultimate purpose is not merely to eliminate the discrimination but also the effects of discrimination, particularly “the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v CA Muer Corp, 420 Mich 355, 363, 362 NW2d 650 (1984).

It is easier to understand why prohibiting discrimination based on stereotypes is just as important as prohibiting overt discrimination when you look back on what stereotypes, existed. 

Take for example the images included in this post, which come from the RCA Company manual, circa 1940s that was posted by Retronaut

At the time the intended audience for this manual probably appreciated some guidance in how to work along side women who began to transition from kitchen and reproductive duties to simply production duties. But now (hopefully) it is at best humorous to think that companies held views like "women are teachable" (above). 

Stereotypes still persist, but the discussion now more often than not takes place outside of the workplace. 

Fast forward to the present and it is clear that stereotypes still persist, just not in company policies and the workplace. Instead, Marissa Mayer's recent ascension to the ranks of CEO of a major U.S. Corporation, Yahoo, illustrates that the headlines garnered by Ms. Mayer focused as much or more on her pregnancy and whether it was realistic or appropriate for her to balance motherhood with the demands of a major CEO position.

Women are Patient.jpgYet, it is even more significant that her pregnancy or how she would balance the demands of the job with motherhood did not deter Yahoo from considering Ms. Mayer for the position, let alone hiring her for it. Score one for progress.

But Yahoo like other employers recognize that the employment landscape has changed. Consider that according to the Pew Research Center, women made up almost half of the labor force (46.7%) in 2010. And in terms of education, women surpass men in both college enrollment and completion.

In light of these facts, perhaps Yahoo should be providing Ms. Mayer and her sisterhood with manuals assuring them that men are "teachable" (although my wife may argue it takes more time and effort) and do not be afraid to call a "trained male counselor" in dealing with male workers.  

In all seriousness, since the time of the manual depicted in this post, women have and continue to make significant gains in their labor force participation and educational attainment. And the majority of U.S. society tends to view this as a positive change. Specifically, a September 2011 Pew Research poll found that 73% of Americans feel that the trend toward more women in the workforce has been a change for the better in society.

Women are Cooperative.jpg

Women in the Workplace - Conflicting Societal Views, but Employers Don't Have the Option to be Conflicted.    

The public may be conflicted about what it means for a woman to properly balance career and family obligations.

But an employer should not have any such conflict for good reason: An employer cannot generally comply with state or federal law by making employment decisions based on suspicion, assumption, or subjective information that a person cannot perform a job because of a protected characteristic, such as gender, pregnancy, or age.

In 2010, women made up almost half of the labor force (46.7%). In 1997, women made up 46.2% of the labor force, and back in 1970 women made up only 38.1% of the labor force.

 

 

How Not to Strike Out in Defending a Race Discrimination Lawsuit

Baseball Bat.jpgA recent employment lawsuit, Ondricko v MGM Grand Detroit, LLC (PDF), for gender and race discrimination, illustrates how an employer can strike out in employment litigation by it's own inconsistencies in disciplining employees and poor documentation for such discipline.  

Factual Background

Kimberly Ondricko is a white female. At the time she was terminated, she was employed as a supervisor with the MGM Grand Detroit casino ("MGM"). As supervisor, Ms. Ondricko was responsible for supervising the card dealers at the casino. 

The employer claimed she was terminated for violating the employer's conduct rule in connection with a "bad shuffle." This bad shuffle involved a blackjack dealer and an automatic card shuffler that malfunctioned, which resulted in the dealer dealing cards previously dealt.

And this is where the problem that inconsistent discipline and poor record-keeping comes into play. Specifically:

  • Since 2004, at least six other supervisors had engaged in misconduct related to card shuffle procedures. Only two were terminated - one before Ms. Ondricko's termination, one after her termination.  
  • The employer's human resource department had referenced the same policy as the basis for both the suspensions and terminations arising out of the "bad shuffle" incidents that Ms. Ondricko was fired for violating. No details explained why suspensions were given out rather than terminations.   
  • Ms. Ondricko had a clean discipline record. In contrast one of the two other employees terminated for "bad shuffle" incidents did not. In fact, this employee, a black female employee, actually had a significant history of disciplinary infractions. 
  • The other supervisor, a black male, was also terminated in relation to a "bad shuffle" violation, but this occurred eight months after Ms. Ondricko's termination, which was around the time that Ms. Ondricko filed her claim with the Equal Employment Opportunity Commission. 
  • Also around the time Ms. Ondricko was fired, the terminated black female employee had retained legal counsel to investigate pursuing claims against the employer. In response to this investigation, an assistant manager - for some inexplicable reason - commented to a vice-president that "do you think I want to fire Kim, I didn't want to fire Kim, how could I keep a white girl."      

Following her termination, Ms. Ondricko sued for gender and race discrimination and the trial court threw both claims out on summary judgment. But that decision was reversed on appeal for the following reasons.  

Turning to Instant Reply, the Call at the Trial Court Level is Reversed

  • Direct Evidence of Discrimination - Strike One

There was no dispute that the employer had a written policy in place relating to "bad shuffles" and, therefore, the employer (at least facially) had a legitimate basis for terminating Ms. Ondricko. Accordingly, she argued that her race, i.e., being a "white girl", was also a motivating factor in her termination. Such a claim is referred to as a mixed-motive case, which happens when a plaintiff claims the adverse employment action is the result of a mixture of legitimate and illegitimate motives. 

The Court easily concluded that the assistant manager's "white girl" statement was direct evidence of race discrimination as it would be reasonable for a jury to conclude that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to card shuffle violations.

  • Inconsistent Disciplinary Actions - Strike Two 

At this point, the employer could have salvaged its defense and victory at the trial level if it met its burden of showing that the employer would have terminated Ms. Ondricko even if it had not been motivated by impermissible discrimination. But that was not to be.

Specifically, at the time of Ms. Ondricko's termination, MGM had only terminated one manager (the black female) for the same violation. That manager had a history of discipline issues and Ms. Ondricko did not. The other manager was terminated for the same violation, but eight months after Ms. Ondricko. The other supervisors were only suspended for apparently violating the same rule Ms. Ondricko was fired for violating.  

  • Deficient Documentation for Disciplinary Actions - Strike Three

As to the other supervisors who had only been suspended, the employer claimed that not all shuffle-related offenses warranted the same level of discipline, thus the "legitimate reason" for the different levels of discipline. 

The Court rejected this argument for several reasons. First, nothing in the rule described any such distinctions and corresponding levels of discipline; It provided only: "What in the business judgment of MGM jeopardizes the efficiency or integrity of the gaming operation is prohibited." 

Second, MGM could not point to no other policy, written or verbal, that delineated the circumstances under which distinctions in the levels of discipline were appropriate.

Third, in most if not all instances, the employer's own company discipline documents only cited the rule the manager violated, but did not reference any details underlying the offense or to otherwise explain why different discipline was warranted.

Accordingly, the Court concluded there were disputed material facts pertaining to the actual motivation involved in MGM’s decision and reversed the trial court's decision and allowed Ms. Ondricko’s Title VII race discrimination claim proceed to trial, as well as the gender discrimination claim. Play ball! 

Successfully Defending Discrimination Suits - What Should Employers Work on in the Off-Season?

First, Title VII’s anti-discrimination provision makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In other words and using the words of the assistant manager, Title VII even applies to "white girls." 

Second, consistency is critical for defending any sort of employment discrimination claim. And the lack of consistency is what doomed the employer's defense. In essence, the employer made the decision to punish Ms. Ondricko, a white female with no record of discipline issues, more harshly to show its recent termination of a black female with a history of discipline issues was not discriminatory.  

Third, it is essential to properly document the reasons an employee is disciplined. If there were extenuating circumstances why one disciplinary action was taken and not another, such circumstances should be recorded. Otherwise, as was the case here, an employer is left with all the glory of hindsight to explain its actions but without any facts to support why seemingly inconsistent levels of discipline was handed out for seemingly similar infractions. 

Fourth, legal counsel should be consulted immediately when it comes to properly disciplining and investigating employee misconduct. Even the best trained managers may not appreciate the nuances or impact a disciplinary decision may have on the company. And if your managers are not properly trained, an employer may get stuck with having to explain why managers used questions like how we keep a "white girl" after firing a black girl as the reference point for disciplinary actions. Have fun with that. 

For more information about investigating employee misconduct or employee disciplines, contact Jason Shinn. Also, for more information about differences between state and federal law when it comes to reverse race discrimination claims see Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law.   

Religion in the Workplace: Avoiding Religious Discrimination Claims

Muslim Prayers.jpgThis week marked the beginning of Ramadan, which is the Islamic month of fasting. Participating Muslims generally refrain from eating and drinking during daylight hours. Ramadan is intended to teach Muslims about patience, spirituality, humility and submissiveness to God.

It is also a good reminder for the need to understand restrictions against religious discrimination in the workplace - not only Islamic religion but all religions. 

This is because Michigan employers are generally prohibited from discriminating in employment decisions and conditions on the basis of religion under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and Title VII under federal law. 42 U.S.C. §§ 2000e et seq.; MCL 37.2202; See also 29 CFR 1605.1 et seq. for additional EEOC guidelines concerning religious discrimination.

Three Forms of Religious Discrimination 

Claims of religious discrimination under Title VII are often framed under three general theories:

  • Disparate treatment: An employee may may assert a disparate treatment theory where an employer treats an employee less favorably than other similarly situated employees because of the employee's religious beliefs or practices. For example, in Campbell v. Avis Rent a Car Sys. (pdf) (E.D. Mich. 2006) a Muslim plaintiff contended that she was terminated because of her Muslim religion and not for legitimate, non-discriminatory reasons because no non-Muslim employee had been terminated under similar circumstances; 
  • Hostile Work Environment: Under this theory, an employee may claim that the employer subjected the employee to a hostile work environment that may take the form of pervasive religious slurs or insults. An example of this type of discrimination occurred in EEOC v. Sunbelt Rentals, Inc., (4th Cir. 2008) where the plaintiff suffered severe and pervasive religious discrimination when several co-workers, including one supervisor, repeatedly called him "Taliban" and "towel head," questioned his allegiance to the United States, mocked his kufi and beard and observance of prayers, and made several anti-Muslim comments in the plaintiff's presence; and  
  • Failure to Accommodate: An employee may claim that an employment requirement, although evenhandedly implemented by the employer, conflicts with the person's religious practices. Enforcement of such a requirement against the employee constitutes a violation of Title VII unless the employer demonstrates that it is unable to accommodate the employee's religious practices without undue hardship. This type of claim was seen in EEOC v. Abercrombie & Fitch Stores, Inc. (2011) where the employer was found to have discriminated against a job applicant for its retail store because she wore a Muslim head scarf. The employer unsuccessfully argued that the scarf violated its employee "look policy" and, therefore, was an undue hardship. 

The Take Away

While the preceding examples of religious discrimination involve Muslim religious practices and beliefs, it is important to realize that religious discrimination may involve any belief that constitute a “religion." For example, see the Ohio Employer's Law Blog's discussion on a claim involving a Taco Bell employee and practicing Nazarite's refusal to cut his hair in accordance with his Biblical views. Further, Title VII broadly defines the term "religion" as “all aspects of religious observance and practice, as well as belief." But defining what is a "religion" or what religious accommodation may or may not be appropriate is best addressed in collaboration with a competent employment attorney.

For further information on Muslim religious practices, the Council on American-Islamic Relations provides employers with this overview of Muslim Religious practices (PDF).   

Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law

Changing Gears.jpgA Flint jury recently awarded $535,000 to a white former employee wrongfully fired after making a racial comment. This verdict also highlights important differences when it comes to reverse discrimination claims under Michigan and federal law.

For background, Mr. Craig Hecht, a former charter school teacher, was fired from Linden Charter for undisputedly telling another employee that “white tables are better than brown tables and brown tables should be burned.” 

At trial, however, Mr. Hecht was able to show that black staff members at Linden Charter Academy also made racial jokes but were never punished like him. 

Reverse Discrimination under Michigan and Federal Law

Reverse discrimination generally refers to discrimination experienced by a member of a class that has not historically been disadvantaged.

Under both Michigan and federal employment discrimination law, an employment plaintiff - minority and non-minority - must generally satisfy a burden-shifting framework (commonly called the McDonnell Douglas test) to establish a prima facie case of discrimination by showing the plaintiff:

  1. Was a member of a protected class; 
  2. Suffered an adverse employment action; 
  3. Was qualified for the position; and 
  4. Was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.

Duch v. Mich. Dep't of Corr. (E.D. Mich. Feb. 15, 2011).

Reverse Discrimination Differences under Michigan and Federal Law

In addition to the preceding test, under federal law, a reverse discrimination plaintiff must also demonstrate "background circumstances" to support the suspicion that the defendant is that unusual employer who "discriminates against the majority." 

In contrast, Michigan law diverged from federal law in 2004 on this point. Specifically, in Lind v. City of Battle Creek, 470 Mich. 230, 232-233 (2004), the Michigan Supreme Court abolished the different standards for minority and non-minority plaintiffs. In this regard, the Court reasoned that the Michigan Civil Rights Act simply protected all persons from racial discrimination equally, with uniform burdens of proof, regardless of the race or races involved. 

Closing Thoughts

Mr. Hecht's verdict is a good reminder of three important points:

  • Employers must have a clear policy prohibiting discrimination in employment. That policy should also define prohibited discrimination and provide multiple avenues for making complaints of perceived discrimination; 
  • A policy is only as good as its enforcement. And even the best policy that is not followed or (worse) applied inconsistently can result in an expensive head-on collision with a jury; and
  • There are a number of similarities between federal and state employment law. But there are also significant differences. It is, therefore, critical to understand these similarities and leverage the strategic value or work to minimize the disadvantages offered to one side or the other, i.e., the employer or individual employee.