California Employees Can’t Seek Back Pay Under PAGA

Employees cannot collect unpaid wages under the California Private Attorneys General Act (PAGA), the California Supreme Court has ruled. PAGA allows workers to seek civil penalties for labor code violations on behalf of the state, but they must pursue back wages in separate actions against their employers.   

“This is a big win for California employers, particularly since it’s a California Supreme Court opinion,” said Brian Sinclair, an attorney with Rutan & Tucker in Costa Mesa, who represented the employer in the case. The ruling significantly reduces how much money employees can recover under PAGA, since they can no longer seek unpaid wages under the act, he explained.

Claim Not Covered

PAGA allows aggrieved employees to sue over alleged labor code violations on behalf of themselves and other employees by stepping into the shoes of state regulators to recover civil penalties. Seventy-five percent of the penalties that are recovered go to the state, and 25 percent go to employees.

In 2014, the California Supreme Court held that—even if workers had signed an arbitration agreement or class-action waiver—employees couldn’t be compelled to arbitrate PAGA claims. The court reasoned that PAGA claims are for the public benefit and that it is contrary to public policy to enforce waivers. Furthermore, the state is the true party in a PAGA claim, because the employee is bringing the claim on behalf of the state.

In an opinion issued on Sept. 12, the state high court said PAGA actions are limited to collecting civil penalties. “Pursuing civil penalties does not prevent an employee from separately or concurrently pursuing unpaid wages and other remedies already available to her,” wrote Justice Mariano-Florentino Cuéllar in a unanimous decision. 

Because PAGA claims can’t be arbitrated, the ruling is especially important for employers with arbitration agreements, Sinclair noted.  

Gary McLaughlin, an attorney with Akin Gump in Los Angeles, said the decision reinforces that any representative claim for unpaid wages is going to have to meet the requirements of class certification.

[SHRM members-only toolkitComplying with California Wage Payment and Hours of Work Laws]

“The decision is a welcome dose of common sense,” said Simon L. Yang, an attorney with Seyfarth Shaw in Los Angeles. PAGA was never intended to exempt unpaid wage claims from class certification procedures or class waivers in arbitration agreements, he said.

Ambiguity in the Act

In the case in question, an employee signed an agreement to arbitrate workplace disputes and waived her right to bring class claims. Among other claims, she sued under PAGA for civil penalties and unpaid wages. The employer sought to compel arbitration only for the back pay part of the PAGA claim.

The California Supreme Court addressed a perceived legal ambiguity that plaintiffs’ attorneys were trying to exploit, said Jim Morris, an attorney with Rutan & Tucker in Costa Mesa, who also represented the employer.

Under the California Labor Code Section 558, the labor commissioner is authorized to collect certain penalties “for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.”

Plaintiffs’ attorneys have argued that PAGA, therefore, allows employees stepping into the commissioner’s shoes to recover unpaid wages. But the California Supreme Court disagreed.

“What we conclude is that the civil penalties a plaintiff may seek under section 558 through the PAGA do not include the ‘amount sufficient to recover underpaid wages,’ ” the state high court said. “Although section 558 authorizes the labor commissioner to recover such an amount, this amount––understood in context––is not a civil penalty that a private citizen has authority to collect through the PAGA.”

Employer Takeaway

The decision doesn’t say much about what employers should do from a compliance perspective, McLaughlin noted, but the ruling will impact companies with arbitration agreements and class waivers. The impact will be somewhat limited on employers without individual arbitration agreements, however, because employees can still pursue unpaid wages through class claims.

“We may see the pace of PAGA claims drop back to when the statute was first rolled out when plaintiff’s attorneys questioned why to even bother with the statute, especially given the 75/25 split of PAGA penalties,” said Katherine Catlos, an attorney with Kaufman Dolowich & Voluck in San Francisco.

McLaughlin said, however, employers should keep in mind that workers can still pursue civil penalties under PAGA, which can be very substantial.

Younger Employees Face Rewards, Risks in Stock Compensation Plans

Millennials and Generation Z employees value participation in their employer’s stock compensation program, a new survey shows, but they need to be mindful of investing too much of their net worth in the company that employs them.

Stock compensation—also called equity compensation or share-based compensation—is a way of paying employees beyond their salary and bonus with ownership in the business, typically through time-restricted shares or stock options, which are subject to vesting periods before they can be sold. The amount of equity that employees are eligible to receive is usually based on their position and tenure, and the goal is to align employees’ interests with the company’s success.

Stock compensation plans share similarities with but also differ from variable pay programs that reward workers with their employer’s equity as long-term incentive payouts when certain goals are met, and from employee stock purchase plans that allow employees to contribute part of their salary to buy company stock at a discount.

“Once reserved for the C-suite, equity compensation has become a driving factor for Millennials and Generation Z employees when considering new career opportunities,” said Craig Rubino, vice president at E*Trade Financial Corporate Services. The firm’s latest survey, conducted in April with responses from over 60,000 stock compensation plan participants, found that:

  • More than half of respondents under age 35 (57 percent) said stock plan benefits are an important consideration when changing jobs, compared with 46 percent of their Baby Boomer counterparts.
  • When asked why they hold on to shares instead of selling them once they can, 35 percent of young participants said it’s because they believe in the company’s future performance, compared with only a quarter of their colleagues age 55 and older.

“The younger generations that make up today’s workforce want to feel connected to their company and participate in its growth potential,” said Scott Whatley, president of E*Trade. A decade ago, benefits like stock compensation “were not nearly as top of mind and were reserved solely for executives.”

However, only 25 percent of young participants understand how taxes may impact their benefits, compared with 38 percent of Baby Boomers, the survey showed.

Millennial and Generation Z participants also are interested in more educational information from their stock plan administrators, with 57 percent indicating they would like more educational guides and FAQs compared with just 45 percent of Baby Boomers.

“Equity compensation is an inherently complex benefit,” Rubino noted. “So as younger employees place greater value on equity, they need education and tools to help them realize the full potential of their benefits.”

Demystifying Stock Compensation

To successfully put a stock plan in place, Rubino advised, benefit managers should:

  • Solicit feedback. Get the right decision-makers on board from the start, from finance and accounting to human resources and legal. Also, consider conducting formal or informal focus groups to collect input on what types of benefits participants want and how they prefer to receive information.
  • Keep in constant contact. Ongoing, customized communications that include easy-to-understand terms as well as metrics and visual aids help participants recognize not just the value of their stock plan benefits but also how they can actively contribute to their company’s performance.
  • Use digital tools but don’t lose the human element. Offering a combination of “live” and digital tools such as 24/7 customer service, personalized alerts, on-demand seminars, live trainings, and online multimedia and mobile content allows participants to access information in ways that work best for them.
  • Look at your peers. Understand what similar organizations are doing and stay on top of industry compensation trends.

[SHRM members-only toolkit: Designing and Managing Incentive Compensation Programs]

Too Much Employer Stock

A survey last year by financial services firm Charles Schwab found that among employees who participate in an employer-sponsored stock compensation plan, employer stock makes up a significant portion of their net worth, especially among younger employees.

The survey showed that stock compensation, on average, accounts for 29 percent of plan participants’ net worth, and 42 percent of Millennials’ savings.

Millennial employees also had a greater share of their net worth in equity compensation than their Generation X and Baby Boomer counterparts (42 percent, compared to 24 percent and 19 percent, respectively). Maintaining a high proportion of company stock may be a conscious choice, as almost three-quarters (73 percent) of employees surveyed also owned company stock outside of their equity compensation plan.

Because it can be risky for employees to tie up too much of their net worth in their employer—employees lost their jobs and much of their savings as a result of Enron’s and others’ bankruptcies, for example—financial advisors often recommend having no more than 10 percent to 20 percent of an investment portfolio in an employer’s stock.

“For some investors, too much company stock can be too much of a good thing,” said Marc McDonough, senior vice president at Schwab Workplace Financial Solutions. “It’s clear that employees value their equity compensation as a major driver of wealth, but they must also appreciate how important it is to diversify,” he noted.

He advised employees to ask for professional help to integrate their stock compensation into their overall financial picture.

Observed E*Trade’s Rubino, “Stock compensation is complex and certainly has its hurdles, but when done right, it can drive real value for both the employee and the organization.”

Accept the Unexpected: How HR Can Create a Crisis Management Plan

SHRM has partnered with Security Management magazine to bring you relevant articles on key HR topics and strategies. 

It is one thing to expect the unexpected. It is quite another to accept the unexpected. Denial is a powerful thing, and even the best of us can be convinced that our plans are comprehensive and our preparedness complete. 

The key ways to overcome this sort of complacency are to link crisis management and business continuity meaningfully, and to incorporate Adaptive Business Continuity principles that enable an organization to react quickly to the unexpected.

Consider that the past few years alone have seen increasingly active Atlantic hurricane seasons, major cyberattacks against global corporations, and secondary losses of key infrastructure following major disasters. Organizations in the public and private sectors are asking their teams to do more with less while also performing to higher standards. The need to recover quickly from losses is as important as ever, while in many cases the resources are thinner than they used to be. These realities require new and innovative approaches.

In addition, as our society grows increasingly interconnected, businesses, organizations and governments will depend upon one another’s services to tighter and tighter tolerances. Utility and communications regulators, for example, are demanding that companies meet stricter reliability standards. This trend will continue for the foreseeable future.

Meanwhile, the costs and consequences of large-scale incidents will grow. Disaster events claimed more than 11,000 victims globally in 2018. The losses from natural and manmade disasters in 2018 are estimated to be $155 billion, with global insured losses estimated to be around $79 billion, according to data from the Swiss Re Group. 

These conditions paint a frightening picture, but therein lies the opportunity. A well-crafted business continuity program, clearly linked to crisis management activities, can be a source of value for an organization—not only in response to disaster, but on “blue sky days” too. The business continuity (BC) program and its practitioners can become meaningful business partners with the organization.

A Tall Order?

Great organizations confronted with crisis can choose to accept the unexpected, adopt a new normal and bring out the best in themselves and their people. In doing so, they take a position of strength that recognizes crisis as a form of change and redefines it for a better future. 

To do this, the organization needs to be poised in its response—not just when a crisis or business interruption occurs, but ahead of it. Done skillfully, a business continuity program can not only enable a better response, but also foster continuous improvement and identify areas of operational improvement along the way.

HR professionals are in a key position to influence their organizations if they adopt practical notions in their BC approach. And, in some cases, it is the HR manager (especially at smaller companies) who is tasked with creating a new BC program where none existed, or worse—with reviving one that has languished.

How does one proceed? By connecting BC to the delivery of continuous improvement and operational value and by linking crisis management and BC in a meaningful way.

To achieve the best outcome, business continuity depends on the planning and preparation effort that comes along with response and recovery. This is where the true blocking and tackling of BC work takes place. 

Some industries and regulators are decidedly prescriptive about the required activities of BC programs under their purview. They mandate activities such as assessing risk, completing a business impact analysis, obtaining buy-in from senior leadership, training, validation, testing and exercising, documentation and communication. This is especially true in the financial sector and in the healthcare industry.

Good Practice Guidelines from the Business Continuity Institute and the standard ISO 22301 are great starting points where such accredited certification is needed or preferred. However, such traditional practices are not the only route to a meaningful BC program. 

Pitfalls of Tradition 

In some cases, the activities and approaches traditionally associated with continuity planning can pose an obstacle to implementing a program. While these may have their appropriate place within many BC contexts, they can also present challenges. 

This is especially true in cases where an organization may have greater latitude in designing a new program or revising an existing one, or in organizations with a culture that favors iterative, agile processes over linear, sequential ones. In these cases, it may be preferable to place the primary focus on quickly delivering value.

For example, a core concept of much BC planning activity is the focus on recovery time objectives (RTOs). The use of RTOs is intended to help quantify recovery needs, prioritize response activity and drive planning activity. 

However, employing time as a target, instead of simply a restriction, can be problematic. In practice, RTOs and recovery point objectives (RPOs) often are subjective or even arbitrary. They are best applied where truly static, precise and predetermined time restrictions exist, such as regulatory time limits, violations or specific matters of health and safety. Otherwise, the effort undertaken to arrive at and assure an RTO may not return value. In other words, if it is clear that failing to meet a six-hour time frame for service restoration will result in a regulatory fine of a specific dollar amount, the decision making process becomes straightforward because investment in meeting the RTO can be clearly weighed against the risk of penalties.

Another cornerstone of the BC world is the business impact analysis (BIA). While the BIA can be an invaluable tool for the BC practitioner, it can also be a subject fraught with confusion. 

In actuality, the proper sequence of service restoration will always depend on the exact nature of the post-disaster situation. As such, responses need to be flexible and adaptive. This is especially true in today’s environment where the cause of a service outage might not be immediately obvious—as in the case of a deliberate cyberattack.

As a consequence of all this activity, an overwhelming amount of documentation can be generated which needs to be guarded, maintained and updated. But rarely is it used in actual response activities. In some cases, BC and response plans are so voluminous that they could not possibly serve a practical purpose in a real emergency. They become the proverbial shelfware.

Lastly, traditional methods emphasize obtaining exclusive senior-level executive support and doing so at the outset. While important, it can be more meaningful to engage at many levels in the organization. 

The real danger here is slipping into a trap where the organization is carrying out extensive business continuity activity for business continuity’s sake, which only delivers value on an arbitrary or periodic basis and could create a false sense of preparedness in departments where little actually exists. The goal, instead, should be to explicitly link to the organization’s objectives and to deliver value incrementally and continuously. 

A Practical Approach

Consider some of the following practical approaches in connecting BC to the delivery of continuous improvement and operational value. These are notions borrowed directly from the approach called Adaptive Business Continuity. Five of Adaptive BC’s core principles, outlined here, are essential for better partnership between HR, crisis management and business continuity. 

Exercise first. In the strictly sequential approach often favored by traditional BC practitioners, testing and exercising come during later stages of the cycle, after plans and assessments have been completed. 

But discussion-based tabletop exercises are the single most powerful tool an organization can use to identify gaps in planning and address assumptions in both crisis management response and BC. Dollar-for-dollar, there is no better value. So why not start there? By walking through a scenario as a group, a team can quickly and easily spot gaps and identify solutions. 

Such exercises can be lightweight and even informal. The key is to have a direct, focused approach driven by one or two clearly defined objectives. 

For example, the objective of this exercise might be to assess the initial response to an unplanned event; to evaluate the escalation protocol defined in the planning documents; or to review the organization’s ability to activate the crisis management plan.

By driving toward the objective, a planning team can steer away from overly complex exercise scenarios. Inevitably, the discussion will uncover low hanging fruit of an operational nature; the exercise players will establish closer personal connections; and the collective team will identify gaps around the predetermined objectives. 

Consequently, the results are both of immediate value and can be used to drive action planning over the medium and longer term. And, in doing so, the team has also established clear connections between BC and crisis management capabilities.

Simplify documentation. Elaborate crisis management and BC plans that are hundreds of pages long are a detriment in three critical ways. First, they require extensive—often labor intensive—maintenance and continuous updates. Second, they are not practical in an actual crisis. Lastly, these are not value-generating activities. BC activity and documentation for its own sake is a common pitfall. 

Simplify plans so they can be internalized and recalled easily by the people that need to know them. Where appropriate, checklists are an excellent tool.

The exceptions, of course, are cases where such plans are mandated or regulatory requirements, such as in the finance and healthcare industries. Absent any compliance or other compelling need, voluminous documentation should be replaced by slim, user-oriented playbooks. 

A practical example of this is an organization with a 75-page corporate incident response policy. Key leaders in the organization had acknowledged that because of the policy’s length, it was universally ignored—posing a critical risk. The solution was to reduce the most significant end user elements of the policy—what the responder truly needed to know first—into a one-page infographic. 

The infographic was introduced to the working teams through a series of short, focused tabletop exercises. Teams were asked to use—and break—key aspects of processes contained in the infographic. 

In the course of the exercises the teams also uncovered critical communications gaps and assumptions and were able to address them. They formulated the catchphrase “Don’t Hesitate to Escalate” to drive home their solution to the communications problem. In doing so, they delivered immediate value to the organization, improved operational efficiency and established a basis for continuous improvement of their BC and crisis management capabilities. 

Continually improve. The most compelling case an HR professional who is managing the BC effort can make to a client or constituent is that the cost and effort required of proposed BC-related activities will offer some immediate payoff, as well as continuous, iterative improvement throughout the process. It provides the opportunity to take more of a role as a partner in the business. Where performance measures like RTOs are needed, along with taking an inventory of key business processes, discussion around these topics should not focus on an arbitrary target. 

Rather, an opportunity exists to engage stakeholders about their goals for the organization and to rationalize the findings of their assessments—challenge them to apply their own intuition to the targets and see if they pass the test of common sense. And by asking why the target is there, call into question how it may be reached on a “blue sky day” more efficiently. 

The BC process can be a source of continuous improvement by providing a venue for these conversations among stakeholders. People are eager to share personal experiences of working through crises—with outcomes that were positive or negative for the organization—especially in a setting where that experience can add value.

For example, one organization recognized that its list of key business processes was extensively detailed and complicated. A very candid, common sense discussion reduced this list from dozens of items to six, only one of which was considered critical. Consequently, the BC management process was simplified, and the crisis management response framework was easier to internalize.

Plan for effects. The causes of catastrophe are innumerable. We cannot plan for every eventuality, and even if we could, our best laid plans often get overtaken by the events. Instead, we should focus on effects. 

Generations of military leaders have understood that  “No plan survives first contact with the enemy.” The notion is familiar and often repeated in more contemporary contexts, but perhaps best by Mike Tyson: “Everyone has a plan until they get punched in the mouth.”

Consider the extreme weather phenomena experienced by the U.S. Northeast in 2011 and 2012. In the fall of 2011, the area experienced a nor’easter and Hurricane Irene in rapid succession. The following fall in 2012, it experienced yet another nor’easter and Superstorm Sandy.

All four events can easily be described as storms, natural disasters or extreme weather. The acute causes of the localized emergency were highly specific, however. Each storm had its own unique character: inland flooding, coastal flooding, a snow event or a tree event. Some would argue that this calls for four unique types of plans—or that each cause needs a corresponding plan. 

On the contrary, the effects of these catastrophes are much fewer. The effects will only be the unexpected unavailability of people (staff), places (facilities) or things (resources and critical suppliers). 

Focusing on effects makes for much simpler, more meaningful and manageable planning. 

Know the business. Above all, the people responsible for carrying out any BC or crisis management activity need to know the business. BC practitioners should align closely with operational teams at every level of the organization—not just at the senior leadership level. Having executive support is beneficial to driving outcomes, but the discovery of truth comes from frontline teams. The best BC practitioners don’t just drive an arbitrary BC cycle. They understand the people, places and things that make the business unit tick—and why. 

If we consider crisis management an unexpected opportunity to change, then BC should serve as the practical, sense-making corollary. In other words, the lessons learned in acute responses to crises can be sharpened into operational improvements and ultimately greater resilience when incorporated by the BC process.

The BC practitioner’s biggest client in any organization is operations. Delivering value during crisis means having close integration between business continuity, crisis management and the real needs of the business.

If we accept that organizations will continue to be challenged in unexpected ways by the external environment—and that this will result in losses—we have to look at how our BC efforts match with the demands placed upon them. 

The organization that is in a position of strength is one that has truthfully inventoried itself, assessed its own assumptions and made use of what it learns along the way—not just in the moment of crisis or business interruption. 

The path to this outcome can follow a traditional, prescriptive route as defined in the ISO and the Good Practice Guidelines—but it can also take more innovative and ongoing forms by linking BC and crisis management to the goals and culture of the organization. A more practical, agile and lean approach like the one outlined by Adaptive Business Continuity is likely to provide more value—and at a faster pace—than traditional practices we currently have in place.  

Brendan Monahan is the chair of the ASIS International Crisis Management and Business Continuity Council. He is an Associate director at Novartis, responsible for coordinating business continuity and for risk and crisis/emergency management in the U.S. country region.   

This article is adapted from Security Management magazine with permission from ASIS © 2019. All rights reserved.

Are Door-to-Door Scams Still a Problem?

Author: PeopleFinders on September 12th, 2019

Spread the love

In the digital age, you probably hear mostly about scams as they occur on social media, email, or other pockets of the internet. You’ve likely also heard about phone scams. But one thing you probably don’t hear much about anymore is door-to-door scams.

Obviously, back in the day, this was the only way you could really run a scam. Today, it seems like most scammers have moved online. Well, door-to-door scams are definitely still very real! In fact, if you treat them as though they’re an ancient relic of the past, it’s more likely that you’ll end up being caught in one. By staying educated, you can protect yourself from these door-to-door scams.

What Type of Door-to-Door Scams Exist?

Plenty of legitimate reasons exist as to why people might visit your home in-person. It’s up to you to remember to be cautious. Here are some of the most popular door-to-door scams still in rotation:

  • Donation scams: Someone pretends to be raising money for a real charity, but is pocketing that money.
  • Survey scams: Someone pretends to be taking a survey or census and collecting data on homeowners, but is merely stealing your information.
  • Home maintenance scams: Someone pretends to offer free home maintenance services such as roof repairs or vacuuming to scope out your home and make plans to break in later.
  • Signature scams: Someone pretends to be a delivery person that needs you to sign for a package, but is merely gathering signatures that could be used for forging checks or other legal documents.

This isn’t a comprehensive list by any means. But you can get an idea of how easy it is for a scammer to pretend to be genuine.

What Can I Do to Avoid Door-to-Door Scams?

The best thing you can do is to never let people in your home that you haven’t pre-arranged to visit. And shut the door if you feel uncomfortable with what the other person is telling you. After all, a scammer can’t scam you if you aren’t listening to the scam. Not listening to a person is always the best option if you feel uneasy.

Of course, especially with door-to-door scams, this can be incredibly difficult. Hanging up the phone on someone you don’t want to talk to is much easier than closing the door in someone’s face. Scammers know that you don’t want to be rude. They prey upon your desire to be polite, because they certainly don’t have the same reservations.

How Can a People Search Engine Help?

If you want to make sure you’re being as safe as possible, a good thing to do is try and check everyone’s identities at the door. That’s where a site like PeopleFinders could come in handy. With PeopleFinders, you can try to research people right at your door from any device.

For example, if a person comes to your door claiming to be a representative from a charity you’ve supported in the past, don’t necessarily let that person in right away to talk. Ask for his or her full name, and then quickly try to perform a criminal records check.

For the sake of full disclosure, tell them what you’re doing. Hopefully, they will be understanding of your need to take extra precautions. Then, if the search results come back clean, you can probably feel a bit more comfortable in continuing to talk to that person. (But still remain cautious.)

If they decline to give you their name, that in itself is not proof of wrong-doing; some people are just very protective of their own information. Then again, it could also mean that they have something to hide. Either way, dealing with them further is a risk you don’t need to take.

Conclusion

Though it’s unlikely you’ve thought about them recently, door-to-door scams are still well in effect across the country. And, like so many scams, they take advantage of people’s good nature and inexperience in dealing with them. By taking just a minute to check these in-person scammers out first, you could very well save yourself your precious time, money, and peace of mind.

Image attribution: edbockstock – stock.adobe.com

Tags: ,

Categorized in: Scams

EEOC Sues Sactacular Holdings, LLC d/b/a Adam & Eve for Sex Discrimination

Company Did Not Hire Men for Sales Positions, Federal Agency Charges

RALEIGH, N.C. – Sactacular Holdings, LLC d/b/a Adam & Eve, a North Carolina limited liability company headquartered in Raleigh, N.C., violated federal law when it refused to hire Christopher Kilby and other similarly situated male applicants
based on their sex, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed yesterday.

According to the EEOC’s complaint, Christopher Kilby applied for a job at Sactacular Holding LLC’s Adam & Eve store on Capital Boulevard in Raleigh, N.C. in August 2017. The complaint alleges that when Kilby later returned to check on the
status of his application, a female salesperson told Kilby the company does not hire men for sales positions. In October 2017, Kilby visited the company’s Clayton, N.C. Adam & Eve store where a female salesperson confirmed to Kilby that the
company does not hire men for sales positions, according to the complaint. The agency further alleges Sactacular Holdings LLC did not hire Kilby and other qualified male applicants based on its policy of not hiring men for sales positions. 
 

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees based on their sex. The EEOC filed suit in U.S. District Court for the Eastern District of North Carolina,
Western Division (EEOC v. Sactacular Holdings, LLC d/b/a Adam & Eve, Civil Action No. 5:19-cv-00402) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay, compensatory
damages and punitive damages, as well as injunctive relief.

“Employers must base hiring decisions on an applicant’s ability to do the job, not on one’s gender,” said Lynette A. Barnes, regional attorney for EEOC’s Charlotte District Office. “Companies that refuse to hire entire classes of applicants not
only violate the law, but also deprive themselves of an entire pool of qualified workers.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by
subscribing to our email updates.

EEOC Sues Colorado Excavating for Disability Discrimination

Company Fired Employee After Seizure, Federal Agency Charges

DENVER – Gollnick Construction, Inc., which does business as Colorado Excavating, violated federal law when it fired an employee because she had a seizure, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed
yesterday.

According to the EEOC’s suit, Colorado Excavating fired office assistant Dora Marquez just four days after she suffered a seizure at work. Marquez felt the oncoming seizure and informed the company’s office manager before its onset. Despite
Marquez leaving the hospital that same day without restrictions, Colorado Excavating fired her four days later because of her disability, the EEOC said.

In addition to firing Marquez, Colorado Excavating failed to accommodate Marquez and to engage in the required interactive process with her to discuss potential accommodations. The EEOC also charged the company engaged in recordkeeping and
confidentiality violations by not keeping medical information in separate medical files and by shredding employment applications.

Such conduct violates the Americans with Disabilities Act (ADA). The EEOC sued in U.S. District Court for the District of Colorado (EEOC v. Gollnick Constr. d/b/a Colo. Excavating, Civil Action No. 1:19-cv-02581) after first trying to settle
through its conciliation process. The lawsuit seeks monetary damages for Marquez as well as injunctive relief prohibiting Colorado Excavating from discriminating based on disability in the future. 

“Far too often, people with seizure disorders are denied employment opportunities because of myths and fears about their condition,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office. “These individuals are or can be
highly productive members of the workforce, and the ADA mandates they should have an equal opportunity to achieve success.”

EEOC Denver Field Director Amy Burkholder added, “Employers lose trained and loyal employees when they get rid of workers because of their disabilities. Such conduct not only violates the ADA, but it is bad for business.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by
subscribing to our email updates.

EEOC Sues Waterway Gas & Wash Company for Disability Discrimination

Company Fired Employee After Seizure, Federal Agency Charges

DENVER – Waterway Gas and Wash Company, a national provider of car wash services, violated federal law when it fired an employee because he had a seizure, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed
yesterday.

According to the EEOC’s suit, Waterway fired employee Tyson Aoyagi from its Lone Tree, Colorado location about two weeks after he suffered a seizure at work and requested accommodation for his disability. Aoyagi was in the process of training for
a promotion to Team Leader when he had the seizure. Despite Aoyagi’s doctor releasing him to return to work and perform most of his job functions, Waterway fired Aoyagi because of his disability, the EEOC said. The suit also alleges that Waterway
refused to discuss his request for accommodation and denied it without explanation. The EEOC further alleged that the com­pany discharged Aoyagi in retaliation for requesting reasonable accommodation for his disability.

The Americans with Disabilities Act (ADA), prohibits employers from making employment decisions based on disability and from retaliating against individuals who request accommodation. The EEOC sued in U.S. District Court for the District of
Colorado (EEOC v. Waterway Gas & Wash Co., Civil Action No. 1:19-cv-02583) after first trying to settle through its conciliation process. The lawsuit seeks monetary damages for Aoyagi as well as injunctive relief prohibiting Waterway from
discriminating based on disability in the future. 

“The ADA requires employers to accommodate employees with disabilities who are qualified to do their jobs,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office. “A seizure at work should prompt a conversation with the
employee and medical experts about possible accommodations – not discharge.”

EEOC Denver Field Director Amy Burkholder added, “This case is a perfect example of a talented employee who was rising through the ranks being discarded after one manifestation of his disability, regardless of his ability to do the job. This type
of discrimination is a violation of federal law.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by
subscribing to our email updates.

Feds Tell Google to Let Workers Express Political and Workplace Opinions

​Google must ensure that its workers can speak up on political and workplace issues, according to the National Labor Relations Board. The board’s directive was part of a settlement of Google employee complaints that their company retaliates against those who do so. Although Google leaders have long said that they encourage open debate, current and former employees say that they were punished for raising concerns about equality and freedom of speech, reported The Wall Street Journal.

SHRM Online has collected the following articles about this topic from its archives and other sources.  

Don’t Require Employees to Keep Written Warnings Confidential

Trying to discourage workplace gossip by prohibiting employees from discussing their written disciplinary warnings usually isn’t a good idea on the part of employers, employment attorneys say. Precluding employees from discussing written warnings could trigger a claim that the employer is violating the employee’s rights under Section 7 of the NLRA, which covers protected concerted activity, as the warnings could be interpreted to be a term or condition of employment.

(SHRM Online)

NLRB May Reconsider Whether Profane Outbursts Are Protected

The National Labor Relations Board is having second thoughts about some of its earlier decisions that shocked the business community by finding certain profane and racially offensive outbursts are protected by the National Labor Relations Act (NLRA). The board has asked for briefs to help it reconsider the standards for determining whether a worker’s profanity or slurs used during union or other concerted activity disqualify the employee from NLRA protection.

(SHRM Online)

What Employee Speech Is Protected in the Workplace? 

Employees don’t have a constitutional right to free speech at work, but employers still need to be aware of federal and state laws that do protect workers’ speech in certain situations. 
(SHRM Online)   

[SHRM members-only toolkit: Managing and Leveraging Workplace Use of Social Media]   

EEOC Files Two Lawsuits for Employees with Epilepsy

Employees Fired Soon After Seizures, Federal Agency Charges

DENVER – The U.S. Equal Employment Opportunity Commission (EEOC) filed two lawsuits yesterday charging two separate employers with disability discrimination after they fired employees who had seizures at work. Such alleged conduct violates the
Americans with Disabilities Act (ADA), which prohibits employers from making employment decisions based on disability and from retaliating against individuals who request accommodation or oppose disability-based discrimination. These cases
demonstrate the agency’s commitment to using its enforcement powers, as necessary, to address discrimination against individuals with disabilities.

In the first suit, filed against Gollnick Construction, which does business as Colorado Excavating, the EEOC alleges the company engaged in disability discrimination when it fired office assistant Dora Marquez just four days after she suffered a
seizure at work. Before firing Marquez, Colorado Excavating failed to engage in an interactive process with her to discuss potential accommodations.

In the second suit, filed against Waterway Gas and Wash Company, a national provider of car wash services, the EEOC similarly alleges the company engaged in disability discrimination when it fired Tyson Aoyagi from its Lone Tree, Colorado
location about two weeks after he suffered a seizure at work. Waterway refused to discuss his request for reasonable accommodation. According to EEOC’s suit, the com­pany fired Aoyagi because of his disability and in retaliation for requesting
reasonable accommodation.

“Negative stereotypes and fears about people with epilepsy are inadequate grounds for refusing to accommodate the disability or for terminating an employee with a seizure disorder,” said EEOC Regional Attorney Mary Jo O’Neill. “These two lawsuits
stress that employment decisions should not be driven by stereotypes and fears about people with epilepsy.”

“Despite medical advances and increased awareness about epilepsy, public misunderstanding and discrimination still exist for those with this brain disorder,” said Sarah Klein, CEO of the Epilepsy Foundation of Colorado. “Most people with epilepsy
don’t need any accommodations at work so employers should not presume that epilepsy has any impact on an employee’s ability to do their job.”

Studies show that the unemployment rate for individuals with epilepsy is two to three times that of the general population. Also, individuals with epilepsy who are gainfully employed are likely to be underemployed or earn less than people who do
not have epilepsy.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by
subscribing to our email updates.

Germany: Defamation via WhatsApp Justified Immediate Discharge

​Sharing an untrue, defamatory claim about a colleague with another co-worker through WhatsApp justified termination without notice in Germany. Notice ordinarily is required prior to firing someone in Germany, but not in such extraordinary circumstances.

Background

An employee heard from a distant acquaintance that one of her colleagues, who is also the father of the company’s managing director, was allegedly a convicted rapist. The employee contacted another co-worker and informed her of this false rumor using the messaging service WhatsApp. The co-worker then told the managing director about this WhatsApp communication with the employee. The managing director immediately fired the employee.

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

Court’s Decision

The Labor Court upheld this so-called extraordinary termination—deemed as such because it occurred without notice.

The rumor that the fired employee shared via WhatsApp was untrue and had the potential to damage her colleague’s reputation. The false allegation was also likely to discredit the colleague in public. According to the Labor Court, passing an allegation on to only one person is sufficient to be considered a damaging dissemination. It is also irrelevant that the dismissed worker assumed that the recipient would treat the message confidentially.

The Labor Court also took into account that the untruthful claim spread by the dismissed employee was an extremely serious allegation. If the false rumor had become public, customer relations might have been damaged. Since the subject of the rumor was the father of the managing director, the fired worker had also undermined the position of the managing director.

An employer does not have to tolerate such behavior.

Anja Becher is an attorney with Ogletree Deakins in Berlin.