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Paul Cunney - Vice President, ACE Westchester Public Entity Paul Cunney was appointed Vice President and Practice Leader for ACE Public Entity Industry practice in April 2012. Based in Jersey City, N.J., Mr. Cunney oversees ACE s coordinated offerings for federal, state, county, and municipal governments, agencies and authorities, as well as the public education sector. With 20 years underwriting experience, Mr. Cunney joined ACE in January 2005. Prior to his current position, he most recently service as Vice President and National Product Manager, for ACE USA s Public Officials and School Leaders, and E&O products. Rick Roskelley Shareholder, Littler Mendelson Rick D. Roskelley handles all aspects of employee compensation, including: minimum wage, overtime, prevailing wage obligations, employee incentive plans and policies other wage and hour matters, independent contractor issues. He also advises and represents clients in wrongful termination and discrimination matters and has considerable knowledge of claims involving: the Americans with Disabilities Act the Fair Labor Standards Act, the Family and Medical Leave Act the Sarbanes-Oxley Act, the Employee Retirement Income Security Act and the Taft-Hartley Act His nationwide practice focuses on the defense of class and collective actions on behalf of employers before state and federal administrative agencies, including: The Equal Employment Opportunity Commission The Occupational Safety and Health Administration The Nevada Equal Rights Commission The Nevada Occupational Safety and Health Review Board, The Utah Occupational Safety and Health Review Board and The Utah Anti- Discrimination and Labor Division..
1. Introduction 2. Employment Practice Exposures For The Public Sector 3. EEOC What You Need To Know And What s New 4. EEOC Criminal History Guidelines 5. Utah Antidiscrimination & Labor Division 6. Fair Credit Reporting Act 7. Mitigating Your Exposure and Risk Management 8. Questions
Multi-plaintiff lawsuit alleges that the defendants terminated plaintiffs for allegedly supporting the former Mayor who lost a re-election bid Combined demand is over $7.5M Over $1million dollars have been paid in defense
Hiring practices Treatment of employees Termination of employees
The statutory bases of employment-related actions against local governmental entities and public officials focus on: Whether there was a discriminatory motive for or a discriminatory result from the employment decision Whether the employment decision otherwise constituted a deprivation of the injured persons civil rights
Title VII of the Civil Rights Act of 1964 The Equal Pay Act of 1963 The Age Discrimination in the Employment Act of 1967 The Rehabilitation Act of 1973 The Americans with Disabilities Act of 1990 The Civil Rights Act of 1871
Public Employees also receive protection under Section 1983 of Title 42 of the U.S. Code, which provides a cause of action against public employers Wrongful Discharge Retaliatory Discharge Constructive Discharge
Right of Privacy Sexual Harassment Quid Pro Quo Sexual Harassment Hostile Environment Harassment Third Party Employment Practice Liability May be liable for discriminating against or harassing a non-employee of the public entity
New EEOC Strategic Plan 2012 through 2016 Announced: 2/22/12 Key Elements: 1. Combat employment discrimination through strategic enforcement focus on systemic investigations/litigation 2. Prevent employment discrimination through education and outreach 3. Deliver excellent and consistent service through a skilled and diverse workforce and effective systems
Focus on Systemic Investigations/Litigation: Pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location. Impacting 20 or more employees. Class litigation not bound by Rule 23 of Federal Rules of Civil Procedure. * Per EEOC 2012 Performance and Accountability Report and 2006 Systemic Task Force Report
Six Priorities Announced Issues that have broad impact in which expertise of the Commission is particularly salient, which are best addressed by EEOC based on access to information, data and research. Eliminating Barriers in Recruitment and Hiring Racial, ethnic and religious groups, older workers, and people with disabilities. Exclusionary policies, steering, screening tools (e.g., background checks, pre-employment tests, etc.) Protecting Immigrant, Migrant and Other Vulnerable Workers Those groups of individuals who are frequently unaware of their rights
SEP Priorities Emerging and Developing Issues Certain ADA issues (reasonable accommodation, qualification standards, undue hardship), accommodating pregnancy limitations, LGBT coverage Enforcing Equal Pay Laws Focus on gender and may use directed investigations and Commissioner charges to facilitate enforcement Preserving Access to the Legal System By way of example, working to address retaliatory actions, overly broad waivers, and settlement provisions restricting access to Commission Preventing Harassment Through Systemic Enforcement and Targeted Outreach Aside from sexual harassment, will focus on claims involving race, ethnicity, religion, and age
105,000 100,000 95,000 90,000 85,000 80,000 75,000 70,000 2006 2007 2008 2009 2010 2011 2012 2013 2014 www.eeoc.gov
Volume of EEOC litigation (122 lawsuits filed in FY 12, 131 and 133 in FY 13 and 14 respectively), Significant risk of reasonable cause finding based on systemic investigations (35% in FY 13, 40% in FY 11 and 12), compared to other types of charges (i.e., less than 5%) Title VII 57% of lawsuits in FY 14 ADA 37% of lawsuits in FY 14 Source: http://www.eeoc.gov/eeoc/plan/2013par.cfm & http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm
Key Issues Identified as EEOC Priorities: Americans with Disabilities Act Accommodating Pregnancy LGBT Issues
Key Focus Leave Policies under the ADA EEOC contends that employers must modify attendance and leave policies to provide disabled employees with additional leave unless: Another accommodation would allow the employee to perform the essential functions of the job; or Granting additional leave would cause an undue hardship General Focus An Employer s failure to make reasonable accommodations based on a person s disability.
Noteworthy Settlements: $20 million - Alleged failure to accommodate by telecommunications firm involving those with disabilities under company s no-fault attendance plan. (D. Md., Press Release, 7/6/11) $6.2 million Alleged inflexible workers compensation leave exhaustion policy by retailer and allegedly terminated employees instead of providing them with reasonable accommodations for their disabilities (N.D. Ill., Press Release, 2/5/10) $2.0 million- Retailer settled lawsuit based on maximum leave policy and requiring employees to disclose confidential information where no showing job related or necessary for conduct of business (EEOC Press Release, S.D. Cal., 12/18/12) $4.85 million Settlement of claims involving maximum leave policy, terminating employees if they required more than 12 weeks of leave (D. Col., Press Release, 11/19/12) $3.2 million Alleged policy by retailer of terminating employees with disabilities at end of medical leaves of absence, rather than making reasonable accommodations (N.D. Ill, Press Release, 1/5/11) See Selected List of Pending and Resolved EEOC Cases Under the Americans with Disabilities Act (ADA) (as of Nov. 8, 2012) http://www.eeoc.gov/eeoc/litigation/selected/racial_harassment.cfm
Noteworthy Litigation EEOC v Houston Funding II Ltd., Case No. 12-20220 (5th Cir., May 30, 2013) Pro EEOC Appeals Court reversed summary judgment for employer and held female employee discharged after asking if she could express breast milk at work engaged in unlawful discrimination and filed on basis of sex, including pregnancy, childbirth or related conditions EEOC v. Bloomberg, 778 F. Supp. 2d 458 (S.D.N.Y. 2011) Pro Employer Complaint alleged employer engaged in a pattern or practice of discrimination against pregnant employees or those who had recently returned from maternity leave, including receiving smaller pay increases and fewer promotion. Employer admitted it was demanding workplace Summary judgment for employer. Court held that Title VII does not require that pregnant employees be given more favorable treatment, only that they be treated the same as all other employees with similar ability or inability to work
Priority identified as an emerging issue Follows EEOC adjudication in a federal sector case -Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012). Commission used vehicle of federal administrative agency appeal. Discrimination against a federal employee because of transgender status is discrimination because of sex and therefore presents a cognizable claim under Title VII Focus was gender stereotyping - distinguish from discrimination based on sexual orientation/ not covered under Title VII But see EEOC v McPherson Cos., No. 2:10-cv-02627 (N.D. Ala., Nov. 14, 2012) Summary judgment for employer. Sex stereotyping theory does not protect a masculine male employee from sexual comments by male co-workers. There was a culture of horseplay and off-color badgering in the allmale warehouse where Doe worked
Exclusionary policies and practices Channeling/steering of individuals into specific jobs Use of screening tools Pre-employment tests Date of birth screens on online applications Criminal history and credit background checks Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (April 25, 2012) Controversy that guidance was developed without public review or comment Guidance focused on disparate impact issues EEOC focuses on national conviction statistics to show how disparate impact may be established EEOC suggests that employer will have burden of refuting a disparate impact determination by showing that its own applicant statistics show no adverse impact
Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime Stuntz, W. J. (2011). The Collapse of American Criminal Justice. Cambridge, MA: Belknap Press of Harvard University Press.
Federal, State, and Local emphasis on reentry More working-age people have criminal records, One in 87 working-aged white men is in prison or jail, compared with 1 in 36 Hispanic men and 1 in 12 African American men Criminal background checks have become more popular as a tool to screen job applicants 90% of companies report using checks for hiring decisions; Legal Developments under Title VII
Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination based on race, color, religion, sex, or national origin. DISPARATE TREATMENT NO PROTECTED STATUS DISPARATE IMPACT TREATED DIFFERENT BASED ON EEO STATUS POLICY UNFAIRLY IMPACTS ON PROTECTED GROUP
Typical evidence the EEOC will look for in disparate treatment case: Biased Statements Inconsistencies in hiring processes Similarly situated comparators Statistical evidence that suggests employer counts criminal record more heavily against members of a protected group
Complaining party shows that employer uses a particular criminal record exclusion policy or practice Which causes a disparate impact... and Employer shows that the exclusion is job related for the position in question and consistent with business necessity OR Complaining party shows that there was a less discriminatory alternative and the employer refused to adopt it
Internal statistics (Respondent data) External Statistics (National and Local) Conviction versus Incarceration Data Geography Diversity of workforce Size of employer Single establishment versus nationwide scope
Pre-employment stage Screening Chilling Effect Most likely no records Application stage Electronic and/or hard copy applicant flow data or lack thereof Post hire/selection or conditional offer stage Look at the discharge data Promotion stage Statistical analyses should recognize that results can vary by geography and job. ORIP is available to run pooled tests which might be useful for this reason
EEOC suspicious of blanket background check policies EEOC Analysis: National data demonstrates that African Americans and Hispanics are arrested and convicted at disproportionately high rates EEOC Conclusion: Excluding candidates based on criminal records likely has disparate impact on African Americans and Hispanics
New EEOC guidelines distinguish between arrests and convictions Fact of Arrest is not a sufficient reason to reject an applicant Employer must look at underlying circumstances of the arrest to establish business necessity of rejecting applicant
Limit inquiries to records that are job related Eliminate blanket policies that automatically excluding based on any type of criminal record Train managers and decision makers to implement the policies and procedures consistent with Title VII Centralize decision making where a criminal record is an exclusion Maintain confidentiality of all criminal records
Request for agency action must be filed within 180 days Employers have 30 days to file a position statement Mediation automatically scheduled for all charges Investigation De novo evidentiary hearing
Initial Selection Process and Personal Information social security number date of birth, or driver s license number Pre-Offer Information Request Use and Disclosure of Personal Information Access to Personal Information
Cannot request or obtain prior to offer social security number date of birth, or driver s license number
Request applicable to all applicants for the position; and Requested during the time the employer: obtains criminal background check; obtains credit history; obtains driving record from the driver license division;
conducts review of internal records to determine whether the applicant was previously employed by it; conducts a review of its internal records to determine whether the applicant previously applied with it; or collects information to provide to a governmental entity for the purpose of participating in a government service.
Can be used only for the purpose of hiring decision Limited Exceptions As required by law To a governmental entity for the purpose of determining eligibility for or participating in a governmental service, benefit or program.
To a governmental entity upon such entity s request. To comply with a lawfully issued court order and/or subpoena or other similar lawful order. If the applicant applies for another position with employer. If the applicant becomes an employee, for a performance review or promotion application if the information is also applied to other employees in similar positions.
Human Resource Employees who perform HR functions. Directors, manager, supervisors or employees, involved in the Initial Selection Process or in the evaluation or decision whether or not the Company will hire the applicant as an employee. Employees and advisors providing legal advice or who are involved in business planning, business management and general administrative activities related to the decision regarding whether employer will hire the applicant.
Retention Access to Policy
The Fair Credit Reporting Act (FCRA) is United States federal legislation that promotes accuracy, fairness and privacy for data used by consumer reporting agencies. Consumer reporting agencies include credit bureaus and financial agencies
Information on where someone lives Information on how individuals pay their bills Information if an individual ever filed for bankruptcy
Consumer reports are being used in employment decisions for Hiring Retention Promotion or Reassignment
Employers must comply with the Fair Credit Reporting Act The Federal Trade Commission (FTC) enforces the FCRA
Tell the applicant you may use this information in the employment decision Get written permission from the applicant or employee
Certify compliance to the company from which your are getting the information You ve notified the individual and have their permission to get a report Complied with all of the FCRA requirements You will not discriminate against the applicant or misuse the information Review the laws in your state as they relate to consumer reports. Some states restrict the use of credit reports
If you decide not to hire or promote someone based on information in the credit report Provide a copy of the report Let the applicant know of his or her right to challenge the report under the FCRA
Centralized Human Resources or coordinated personnel department Uniform application for all applicants Written performance evaluations for all employees Training / Retraining sessions topics like sensitivity, discrimination and harassment
Mandatory arbitration of employment and labor related claims Publish and distribute a uniform employment handbook Centralized Human Resources or coordinated personnel department Formalized out-placement program that assists terminated or laid off employees in finding other jobs
Equal Employment Opportunity Statement At will statement (where applicable) Sexual Harassment policy/procedure Progressive discipline Family Medical Leave Act policy
Pregnancy Leave Policy Grievance Procedures ADA policy requiring reasonable accommodation HIPPA Privacy Compliance Policy E-mail and Voicemail Use Retention of Computer Data, E-mails and Voicemails
Claimant was terminated for allowing family members into an event w/o purchasing tickets and allegedly misappropriated furniture belonging to the district Allegations included breach of contract (employee handbook, the alleged contract), failure to pay overtime, and retaliatory termination for complaining about unpaid overtime Cost of settlement and defense was $250,000