Perspectives of a Plaintiff s Lawyer: Things Employers Do to Make My Job Easier (and More Profitable) Association of Corporate Counsel March 12, 2014

Transcription

1 Perspectives of a Plaintiff s Lawyer: Things Employers Do to Make My Job Easier (and More Profitable) Association of Corporate Counsel March 12, 2014 Vaughn Burkholder Tara Eberline Foulston Siefkin LLP

2 Perspectives of a Plaintiff s Lawyer With special guest REGGIE ROTTWEILER MAKE-EM-PAY

3 Reggie loves it when companies improperly pay employees.

4 Don t help Reggie! 2013 Kansas Wage Payment Act changes With signed written agreement, employer can withhold: Repayment of loan/advance to employee. Recover payroll overpayment. Replacement cost of merch./uniforms bought by employee. With written notice and explanation, deduct from final wages: All items listed above, plus To recover employer s property (tools, safety equipment, computers, phones, proprietary information). Upon return of property, must pay withheld wages. BUT: Must comply with FLSA, incl. pay exempt employees full salary for any week in which they work.

5 Don t help Reggie! FLSA class actions still popular with plaintiff s attorneys. Danger of big attorneys fees awards. Lumry v. State (Kan. Ct. App. 2013): public officials can be personally liable under FLSA. Note: Effective 1/1/14, MO min. wage = $7.50 for regular employees. $3.75 for tipped employees.

6 Don t help Reggie! Sandifer v. Steel Corp. (U.S. Supreme Court 2013) Class action claim: FLSA requires pay for time spent donning and doffing safety gear. 9-0 decision: Safety gear = clothes. FLSA does not require pay for time spent changing clothes if the CBA so provides.

7 Reggie loves it when employers take adverse action against an employee soon after protected activity.

8 Reggie loves retaliation claims! EEOC s 2013 Enforcement and Litigation Report Total EEOC Charges Nationwide: 93,727 41% include a retaliation claim. Kansas Charges: 852/~800 to KHRC 51% of federal charges include a retaliation claim. Missouri Charges: 1,958/~1,300 to MCHR 48% of federal charges include a retaliation claim. Nebraska Charges: 77/882 to NEOC 34% of federal charges include a retaliation claim.

9 Boxum-Debolt v. Office of Dist. Attorney D. Kan Spring 2010: Employees report Defendant discriminates, a proper room to express breast milk not provided. August 2010: Employees terminated. Court rejects motion to dismiss Title VII claims: Even if no Title VII breastfeeding discrimination claim, Plaintiffs had reasonable belief conduct was discriminatory.

10 University of Texas v. Nassar (U.S. Supreme Court 2013) Plaintiff accuses supervisor of religion and ethnicity harassment. Meanwhile, Plaintiff offered staff physician privileges at nearby hospital. Plaintiff resigns due to harassment, Defendant reminds hospital that staff physicians must be on Defendant s faculty. Hospital withdrew offer to Plaintiff. Issue: What is proper causation standard for discrimination/retaliation claims?

11 Don t help Reggie! Univ. of Texas v. Nassar (cont d) To prove status-based discrimination (race, sex, religion, etc.), employee must show the personal characteristic was a motivating factor for the employment action. To prove retaliation, employee must show that the desire to retaliate was the butfor cause of the employment action, NOT just a motivating factor.

12 Reggie loves it when companies handle discrimination charges without legal counsel.

13 Don t help Reggie! Farrow v. St. Francis Medical Center (Mo. 2013) Nurse complains that doctor sexually harassed her. Nurse dual-files her charge 230 days after discharge. EEOC investigates, EEOC/MCHR issue right-to-sue notices. Court: Employers must challenge untimeliness of a charge while the charge is pending. If MCHR issues right-to-sue on untimely charge, employer must file writ of mandamus against MCHR within 30 days. If not, employer waives untimeliness. Applies even if investigated by EEOC, rather than MCHR. Employer must file lawsuit not knowing if employee will.

14 Reggie loves it when discipline issues are not documented properly.

15 Don t help Reggie! Document all significant discipline and performance issues Actual write-up:

16 Don t help Reggie! Document all significant discipline and performance issues Actual write-up:

17 Reggie loves it when companies fail to train (and re-train) low- and mid-level managers to handle harassment /discrimination.

18 Don t help Reggie! Training senior managers and HR to handle complaints is not sufficient. Lower level managers are often recipients of reports. Whatever managers know, the company knows. Train each year on how to handle formal and informal reports and document the training. Discipline any manager who doesn t report a complaint.

19 Vance v. Ball State University (U.S. Supreme Court 2013) Affirmative Defense: If no tangible employment action by a supervisor, no liability if: employer exercised reasonable care to prevent and promptly correct harassing behavior, and victim failed to take advantage. Who is supervisor for harassment purposes? Supervisor = power to take tangible employment actions (hire, fire, other significant change in benefits ). Good result for employers.

20 McCafferty v. Preiss Enters., Inc. (10 th Cir. 2013) 21 y.o. McDonald s shift manager pulls 15 y.o. employee out of school for work. Instead, manager gives employee drugs and alcohol, has sex with her. Employee sues for sexual harassment. Court: Shift manager supervisor under Vance ruling, and all sexual advances happened outside the workplace, so no liability for employer.

21 Diaz v. Autozoners LLC (Jackson County, MO 2014) Employee sexually harassed by 2 customers 1x/day/year. She complained daily. Management told her they didn t want to lose customers business, stop crying. Employee called HR; it took months to hear back. Jury: $75K actual damages; $2.5 M in punitive damages. Retaliation claim rejected. (removal from mgmt. training) Employee still works for Autozone at another location.

22 Don t help Reggie! Take every harassment report seriously, including reports of customer harassment. Follow up with complainants to confirm concerns are fully addressed, then document. You can discipline complaining employees if you do so fairly and document the reasons.

23 Reggie loves it when HR mis-manages employees LOA (or better yet, fires otherwise good employees while on LOA).

24 Don t help Reggie! FMLA is very specific, easy to make mistakes. ADA covers nearly any medical condition. One big/expensive mistake: Automatically let employee go who can t return to work after 12 week FMLA leave expires.

25 Smothers v. Solvay Chems., Inc. (10 th Cir. 2014) Maintenance mechanic granted intermittent leave for spinal condition, but: managers/coworkers complained about absences. employee was given negative performance evaluations and denied promotion due to absences. Plaintiff violates safety rule, argues with coworker. After investigation, 6 decision-makers fire Plaintiff. Plaintiff argues the safety violation was pretext for FMLA interference/retaliation.

26 Smothers v. Solvay Chems., Inc. (Cont d) FMLA claim revived because: Plaintiff treated more harshly than similarly situated. employees who committed similar safety violations. Need not have total match in decision-makers for employees to be similarly situated. Inadequate investigation because 3 decision-makers spoke to other employee, but Plaintiff not allowed to explain. ADA claim also revived because back condition substantially limited ability to sleep and same pretext arguments applied.

27 Reggie loves it when managers handle discipline inconsistently.

28 Don t help Reggie! Courts infer discrimination from inconsistent treatment of employees. Monitor managers to make sure they handle discipline issues consistently. Includes not padding troublesome employee s file with write-ups for issues overlooked when done by others (see Smothers).

29 Busenbark v. Kansas Gas Service (Wyandotte County, KS 2014) Four plaintiffs ages 46 to 59 employed for > 23 years. Porn discovered on work computer of employee, investigation found porn on 52 others. KS Gas rated severity and frequency of porn, fired 4 plaintiffs. 6 others also fired later. Plaintiffs: Older workers with no prior discipline were unfairly fired after their offense. Younger employees with serious discipline issues not fired. Jury: $900K + future lost income + attorneys fees.

30 Reggie loves it when managers give every employee satisfactory or excellent performance evaluations.

31 Don t help Reggie! Train supervisors to give accurate evaluations. Terminating an employee for poor performance when all evaluations are satisfactory or better is likely to get your company sued.

32 Grimes v. Fox & Hound (D. Kan. 2013) Managing partners complete monthly self-evaluations (1=unacceptable; 5=consistently exceptional). Plaintiff frequently rated self 1 in some categories. June 2011 F&H lists Plaintiff s position on a report listing positions to be filled. December 2011 New employee hired & trained. January 2012 Plaintiff requests LOA for foot problem. On LOA, Plaintiff told he d be fired when leave ended. SJ granted to F&H = No temporal proximity b/c decision made before LOA.

33 Reggie loves it when employers always challenge former employees requests for unemployment compensation.

34 Don t help Reggie! Challenging employee s request for unemployment compensation may anger employee enough to speak to plaintiff s attorney. If it s a close call or you think employee is litigious it may be better to not respond to DOL.

35 2013 Changes to Kansas Unemployment Laws Definition of disqualifying misconduct : Termination for rule or policy violation if: Employee knew/should have known about the rule, The rule was lawfully and reasonably related to the job, and The rule was fairly and consistently enforced. Positive alcohol/drug test, as long as based on reasonable suspicion. Attendance/tardiness, if: Employee aware of attendance expectations, Employer notice that future absences/tardiness result in discharge; and Absences/tardiness good cause (doctor s note = good cause) If employee quit, no unemployment unless good cause : reasonable employee using ordinary common sense would quit under same circumstances. Employee making false statements to the commission is disqualified for 5 years!

36 Reggie s Reminders Be unfair! Be inconsistent! Don t document! Act quickly, preferably without consulting anyone else (especially an attorney)!

37 Tara s Tips Be unfair. Be inconsistent. Don t document. Act quickly, preferably without consulting anyone else (especially an attorney) cautiously, and consider consulting an attorney.

38 Thank you! Vaughn Burkholder Tara @TEberline