By: Ogletree Deakins

The federal Occupational Safety and Health Administration (OSHA) has written an enforcement directive for purposes of investigating and dealing with incidents of workplace violence. The directive, issued on September 8, 2011, will be used by OSHA’s district supervisors and area directors in determining whether or not to conduct an investigation into allegations of workplace violence, and includes inspection procedures that will be followed by the agency’s compliance officers while conducting such inspections. It also suggests various methods of abatement available to employers in workplace violence situations.

The directive expands the typical definition of workplace violence to include “threats of assault,” as well as actual assaults, directed toward individuals at work or on duty. It lists four categories of workplace violence based upon the relationship between the perpetrator of the violence and the target of that violence. Briefly, the four categories are: (1) criminal intent (violent acts by people who enter the workplace to commit a robbery or crime or current or former employees who enter the workplace with the intent to commit a crime); (2) customer/client/patient (violence directed at employees by customers, clients, patients, etc.); (3) co-worker (violence against co-workers by a current or former employee); and (4) personal (violence in workplace by a non-employee who has a relationship with an employee).

The directive identifies high-risk industries that are particularly susceptible to workplace violence, and focuses on two of them: health care/social service settings, and late-night retail settings. It also spells out various risk factors that may indicate the potential for workplace violence. These include: (1) working with unstable/volatile persons in certain health care/social service or criminal justice settings; (2) working alone or in small groups; (3) working late at night or during early morning hours; (4) working in high crime areas; (5) guarding valuable property or possessions; (6) community-based health or drug abuse clinics; (7) exchanging money in certain financial institutions; (8) delivery of passengers, goods or services; and (9) mobile workplaces (i.e., taxi drivers).

OSHA advises that inspections "generally shall not be considered" if the allegation of workplace violence is based solely upon threats by co-workers, but further states that OSHA may refer such incidents to the appropriate criminal enforcement agency, the Equal Employment Opportunity Commission, or the National Labor Relations Board for follow up investigation. OSHA inspections may be initiated following a complaint, referral, fatality or catastrophic event (which is defined in the directive as hospitalization of three or more employees) involving an incident of workplace violence. Inspections are more likely in high-risk industries or workplace settings that include the cited "risk factors." Employers also may face citations for potential workplace violence issues during programmed inspections.

The directive lists certain actions or mechanisms available to employers to minimize or eliminate the risk of workplace violence (including alarm systems, panic buttons and hand-held alarms). According to OSHA, administrative controls also could include establishing liaisons with local police and state prosecutors, implementing a mandatory reporting policy, maintaining a log book of all reported assaults or threats, and advising employers of procedures for requesting police assistance or filing charges.

The importance of this new directive is its relationship to OSHA’s General Duty Clause. Under that clause, an employer has a “general duty” to provide a safe workplace, and OSHA has the power to enforce deviations from that duty and impose fines and penalties for violations. The extension of OSHA into incidents and threats of violence is an event to which employers should pay close attention. The extent and manner in which workplace violence is managed by an employer will directly affect its ability to defend against OSHA citations and other potential civil or criminal proceedings related to such incidents.
 

On August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under the rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights under that Act. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. The proposed rule has been pending since December of last year, and was to have taken effect on November 14, 2011, at which time the required notices were to have been posted. The Board received over 7,000 comments – from employers, employees, and even unions – during the comment period.  Most of those objected to all or parts of the new rule.

Earlier this week, the National Labor Relations Board (NLRB) issued a press release announcing its decision to postpone the implementation date for the notice until January 31, 2012, ostensibly to allow for enhanced education and outreach to employers. However, it also will provide time for the Board to review and analyze actions challenging the notice, and to assess challenges to the Board’s authority to create or enforce a rule requiring such notice. This firm is actively involved in the issues, and is representing the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce in an action challenging the rule. According to Cheryl Stanton, a shareholder in Ogletree Deakins’ Morristown, New Jersey office: “We are gratified that the NLRB has heeded the parties’ request that the Board postpone implementation of the new posting requirement to permit a measured and thorough judicial review of whether the Board exceeded its authority in this rulemaking process.”

Employers who fail to post the notice after the new deadline may be subject to sanctions for an unfair labor practice under the NLRA, and, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. This means that an employer’s failure to post the required notice may allow employees additional time within which to file ULP charges against the employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

Proposed notice language can be found on the NLRB’s website, along with FAQs and a copy of the required poster.
 

On September 26, 2011, the 9th U.S. Circuit Court of Appeals overturned summary judgment allowing a 59 year old employee’s claim of age discrimination to go to a jury, based largely on evidence that younger employees – even those over 40 years old – had been disciplined differently than she was. Christine Earl v. Nielsen Media Research, Inc., 9th Cir., No. 09-17477, Sept. 26, 2011. (You can listen to a recording of the Ninth Circuit argument on this case if you have the appropriate media player.)

For over twelve years, Christine Earl worked as a “recruiter” for Nielsen Media Research, recruiting households within specific demographics to participate in research regarding their television viewing habits. In 2005, when Earl was 57 years old, she received a verbal warning for violating the company’s gift policy, which prohibited recruiters from leaving gifts at unoccupied households. On early 2006, Earl again violated that policy, along with another that required recruiters to keep a company map with them while visiting targeted households. In February 2006, Earl was placed on a Developmental Improvement Plan (“DIP”). A DIP is an informal non-disciplinary tool used by Nielsen to inform an employee that his or her performance has fallen below company standards. A DIP differs from a performance Improvement Plan (“PIP”), a part of Nielsen’s disciplinary process during which an employee is informed that additional performance problems may result in further disciplinary action, up to and including termination. Earl had never received a PIP during her employment with Nielsen.

In October 2005, Earl made an error during the process of obtaining the consent of a household to participate in Nielsen research. The error, which consisted of writing down an incorrect address for the household, was unnoticed by Earl and her customer. However, when the Nielsen technician who was to install the company’s monitoring device realized the error (the incorrect household refused the installation), he was able to correct it. When Nielsen learned of Earl’s mistake, it fired her.

Earl brought a lawsuit against Nielsen, including a claim of age discrimination under the relevant California law. California courts look to federal decisions under the ADEA when interpreting that law, and use the familiar McDonnell-Douglas 3-part analysis. Under that analysis, an employee first must set forth a prima facie case of discrimination, a fairly straight-forward burden. The employer then must proffer a “legitimate business reason” for its actions. The final step in the analysis – and a critical one to an employee’s successful lawsuit – is that the employee must raise a triable issue for the jury that the employer’s proffered reason is simply a pretext for unlawful discrimination.

In Earl’s case, Nielsen filed a motion for summary judgment, claiming that Earl could not prove that her termination was a pretext for discrimination. While the lower court held that Earl could not create a question of fact for the jury on that issue, the Ninth Circuit disagreed, finding that Earl had produced evidence of pretext. That evidence, according to the Court, was that while Nielsen did not have a formal written policy that required a PIP before firing an employee, the procedure of doing so was viewed by the company as an integral step in the disciplinary process. In fact, less than a year prior to Earl’s termination, the company’s HR manager objected to the termination of a 42 year-old employee without first implementing a PIP because such action “would not be consistent with our procedure.” While the company argued that its written policy included language that allowed it to accelerate the disciplinary process at its discretion, the Ninth Circuit held that the company’s general reliance on the issuance of a PIP prior to termination is essence created an internal policy that was violated in Earl’s case. It reversed the lower court’s decision and remanded the case back for a trial on the issues.

The message of this case is an important one: consistency is the key to avoiding the perception that the basis of differing disciplinary actions is an employee’s protected characteristic. Here, applying a more “forgiving” policy to a 42 year old than to 59 year old Earl raised a triable issue of fact, regardless of the company’s formal policy, and will allow Earl to argue that she was terminated without a PIP solely because of her age.
 

In gender discrimination cases under Title VII, a jury can award back pay and front pay, but also can award compensatory damages if it believes that an employee was harmed emotionally or psychologically by the alleged harassment or hostile work environment. The 1st U.S. Circuit Court of Appeals recently affirmed a $1.6 Million damages award against a Massachusetts hospital and a male physician, and in favor of a female neurosurgeon who claimed hostile work environment and retaliation under Title VII. Tuli v. Brigham & Women’s Hospital, 1st Circ., No. 09-1731, August 29, 2011.

Dr. Sagun Tuli, a female neurosurgeon, brought claims against her employer, Brigham & Women’s Hospital and her supervisor, Dr. Arthur Day, after a yearly review of her medical staff credentials resulted in a conditional reappointment. Tuli, who was hired into the hospital’s Department of Neurosurgery in 2002, acted as the department’s professionalism officer and representative to the hospital’s Quality Assurance and Risk Management (QARM) Committee, which required her to investigate and report on other doctors’ case complications. As QUARM representative, Tuli investigated three of Day’s cases, all three of which ultimately were reported to the state’s Board of Registration of Medicine. In addition, Tuli raised concerns to the hospital’s chief medical officer that Day was inappropriate and demeaning to women, including Tuli.

In 2007, Tuli’s medical staff credentials were due for review by the hospital’s credentialing committee. The results of that review would determine whether Tuli would continue to have “privileges” at Brigham & Women’s – that is, whether she would be allowed to practice medicine at the hospital. Day presented Tuli’s case to the committee in unflattering terms, including a suggestion that she would benefit from anger management training. The committee then conditioned Tuli’s reappointment on obtaining an evaluation by an outside agency (“Physician Health Services”) and on agreeing to comply with that agency’s recommendations.

Tuli subsequently filed a lawsuit asking for a preliminary injunction to prevent the loss of her privileges. She also alleged gender discrimination, claiming both disparate treatment and hostile work environment, based upon Day’s behavior toward her. The district court granted the preliminary injunction. Shortly after that, a jury decided Tuli’s claims, awarding $1 Million in compensatory damages against the hospital on Tuli’s hostile environment claim, $600,000 against the hospital in compensatory damages on her retaliation claim, and $20,000 against Day personally for economic harm on a “tortuous interference with business” claim. At that point, the lower court entered a permanent injunction, keeping the hospital from withdrawing Tuli’s privileges at the hospital. The hospital appealed on all counts.

On appeal, the First Circuit upheld the jury’s verdict, as well as the permanent injunction. It found that the evidence showed that Day frequently had questioned Tuli’s authority, calling her a “little girl,” and asking whether she really could do a “big operation.” In addition, the First Circuit upheld the use of evidence at trial that included incidents outside of the applicable 300-day statute of limitations. In other words, it upheld Tuli’s evidence to the jury of Day’s behavior over the course of her employment, and not simply behavior within the 300 days prior to her first formal claim. Under this “continuing violation” theory, if an act contributing to the claim occurs within the filing period, the entire time period of the alleged hostile environment can be considered by the jury for purposes of determining liability.

While this case is a warning to employers on the risks associated with hostile environment and retaliation claims, the warning is especially strong for hospital and health care systems that directly employ physicians. First, the income level of the individual involved typically translates into higher damages awards when juries find in their favor; and second, the risk created by the overlap between the credentialing process and hostile environment cannot be ignored, especially when an alleged harasser is directly involved in the credentialing process.
 

The Americans with Disabilities Act prohibits employers from discriminating against individuals because of disability or perceived disability. However, in order to sufficiently support an ADA claim, an individual employee must be able to prove that he was qualified to perform his job in a satisfactory manner, with or without accommodation. Recently, the 7th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer, based upon the fact tat the plaintiff/employee, although disabled, was unable to show that he was meeting the legitimate job expectations of his employer and therefore was not a “qualified individual with a disability” under the ADA. Dickerson v. Bd. Of Trustees of Comm. College District 522, 7th Cir., No. 10-3381, September 16, 2011.

Robert Dickerson is employed as a part-time custodian for a community college in Illinois (“District 522”). Dickerson is mentally impaired, with a Full Scale IQ of 67 which, according to the court, falls into the range of “mild mental retardation.” In August 2007, Dickerson applied for a full-time position, but was not the successful candidate. In December of that year, Dickerson’s overall job performance was rated as “Unsatisfactory,” based on a number of issues, including the fact that he needed constant supervision or would wander off jobs. He often left his work area, putting additional burden on his co-workers. In January 2008, Dickerson filed a grievance with his union, and in February, he filed an EEOC charge alleging discrimination based upon his mental disability.

In the Spring of 2008, subsequent to the EEOC charge, Dickerson asked Larry Friederich, the District’s Vice President of Human Resources, what he should be doing in order to be promoted to a full-time position. Friederich responded along the lines of “you should not be suing your employer.”

Although Dickerson’s performance improved somewhat in 2008, the District found that he had made “insufficient progress” in correcting the issues raised in his 2007 evaluation, and terminated his employment. Dickerson grieved the termination, and an arbitrator reinstated him to his part-time position on the basis that the District had failed to follow the bargained-for progressive discipline policy. Dickerson then filed a lawsuit against District 522, claiming that District 522 discriminated against him by failing to promote him, evaluating him negatively, and firing him. The lower court granted summary judgment in favor of District 522. That decision was upheld by the Seventh Circuit on appeal.

An employee can support claims of discrimination and retaliation with direct evidence or indirect evidence. Direct evidence typically requires an admission by a decision-maker. In this case, Dickerson pointed to Friederich’s statement regarding the EEOC charge to allege that District 522 acted against him because of that charge. Indirect evidence requires the now-familiar “burden-shifting” analysis under McDonnell-Douglas, and requires an employer to set forth a legitimate business reason for its actions in order to rebut an employee’s prima facie case of discrimination.

In either event, the ADA protects only a “qualified individual” – someone with a disability who can perform the essential functions of the job with or without reasonable accommodation. In this case, the Seventh Circuit determined that Dickerson was unable to fulfill his job duties, based upon his history of discipline and performance criticism. It pointed out that Dickerson had received performance warnings as far back as 2005 for failing to complete work assignments and for leaving the job site without permission, that his 2007 performance evaluation was “Unsatisfactory,” and that his supervisor had frequently reprimanded him for work-related issues. While Dickerson disagreed with the negative evaluations, the court did not interpret that to mean that the evaluations were the result of unlawful discrimination.

While the rationale in this case is somewhat murky and seems to conflate the analysis of direct and indirect evidence, the holding rests squarely on the fact that District 522 was able to provide evidence and documentation of Dickerson’s history of performance problems, warnings, and counselings. The message for employers is obvious: regular, objective, and fully documented performance reviews are critical evidence in the defense of discrimination cases. Written job descriptions that spell out the duties and responsibilities of an employee also can assist in providing evidence of an employer’s legitimate expectations of an employee, and should be reviewed and updated regularly to accurately reflect that information.
 

On August 25, 2011, the National Labor Relations Board (NLRB) issued a press release in which it announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA).  Private-sector employers (including labor organizations) whose workplaces fall under the jurisdiction of the NLRA will be required to post a notice of employee rights under that Act. In addition, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice at those sites. The proposed rule has been pending since December of last year, and will take effect on November 14, 2011, at which time the required notices must be posted.

The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. Copies of acceptable notice will be available from the NLRB’s regional offices, but also be downloaded from the NLRB website. Under the final rule, employers have the right to post their own notice as well. While the final rule addresses the issue of whether employers may post their own notices informing employees of the company’s position, the fact that proposed Notice language has been suggested by the NLRB is a likely hint that employer-drafted notices should include some or all of the proposed language.

The final rule also specifically addresses the issue of multi-national workforces in the US, and provides that where 20% or more of a workforce “is not proficient in English and speaks a language other than English,” the employer must provide notice in the language that such employees speak. The rule goes further to require that if an employer’s workforce “includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must provide the notice in each such language." The NLRB has offered to provide translations of the notice.

The final rule lists a number of exemptions from the notice posting requirement including, for example, state or political subdivisions. In addition, the final rule states that federal contractors may comply with the provisions of the NLRB’s posting requirement by posting the notices to employees already required under the DOL’s notice posting rule, and will not have to post a second notice.

Sanctions will be imposed against employers who fail to comply with the posting requirements after November 14, 2011. Primarily, an employer’s failure to post the notice may be treated as an unfair labor practice under the NLRA. However, the rule also states that the unfair labor practice case typically will be closed without further action if an employer was unaware of the rule and complies when requested. However, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA.

Proposed notice language can be found on the NLRB’s website, along with an information sheet that summarizes the provisions of the 194 page rule.
 

In February of this year, the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting to examine the practices by employers of considering only currently employed candidates for job vacancies and excluding currently unemployed persons from job applicant pools. A recent follow-up report by the National Employment Law Project , a national advocacy organization for employment rights of lower-wage workers, focused on what it called “the persistent practice” of excluding candidates based on their employment status. In response to this report and others like it, a bill was introduced in the House of Representatives  in June that will make it illegal for employers and employment agencies to screen out unemployed job seekers. On August 2, the Senate followed suit with an as-yet unpublished bill with the same purpose. The proposed legislation has been named the “Fair Employment Opportunity Act” and prohibits consideration of an individual’s status as “unemployed” in screening for or filling positions.

The Act would make it illegal for an employer to: (1) refuse to consider for employment or refuse to offer employment to an individual because of the individual’s status as unemployed; (2) publish in print, on the Internet, or in any other medium, an advertisement or announcement for any job that includes any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for a job (“must be currently employed”) and (3) direct or request that an employment agency take an individual’s status as unemployed into account in screening or referring applicants for employment.

An employer or employment agency that is found to have violated the Act would be liable to the affected individual for any wages, salary, benefits, or other compensation denied or lost to the individual; or, in a case in which wages, salary, benefits, or other compensation have not been denied or lost to the individual, any actual monetary losses sustained as a direct result of the violation, or a civil penalty of $1,000 per violation per day, whichever is greater. In addition, there are provisions in the proposed Act for liquidated damages, interest, and attorney fees.

However, there is a somewhat vague and contradictory exception to the prohibitions set forth in the proposed Act. The wording of the House bill states that it is illegal to discriminate against an unemployed individual, “except where a requirement related to employment status is a bona fide occupational qualification reasonably necessary to successful performance in the job, and to eliminate the burdens imposed on commerce by excluding such individuals from employment.” In other words, an exception to the prohibitions of the Act is established if an employer can show that an individual’s employment in a similar job, during a time proximate to the hiring, is necessary to successful performance of the job for which the person is being hired. Without additional parameters, that exception could be applied to nearly every job, where it is almost always advantageous (“reasonably necessary to successful performance in the job”?) to have proximate experience in the field prior to starting a new job. It remains to be seen as to whether that exception would over-shadow the overall purpose of the proposed law, and whether it would have the ultimate result of creating increased and unnecessary litigation on the issue.
 

Recently, the National Labor Relations Board (NLRB) has increased its focus on social media communications, and especially on those postings that include discussion regarding the terms and conditions of employment. The issues most commonly raised in cases before the NLRB have alleged that: (1) an employer has overbroad policies that restrict employees’ use of social media; or (2) that an employer unlawfully discharged or disciplined one or more employees over contents of social media postings. Based upon the Board’s increased focus on these issues, employers are reviewing and revising existing social media policies in an attempt to fully understand how this area of the law is evolving.

While there has been a rash of cases in which employers have been criticized for restrictions related to employees’ social media use, three recent memoranda to NLRB regional offices from the Board’s Office of the General Counsel (OGC) indicate that the Board is not imposing a blanket prohibition on discipline related to social media postings by employees.

On July 7, 2011, the OGC responded to a query as to whether an employer unlawfully discharged an employee/bartender for posting a Facebook message that referenced the employer’s tipping policy (that waitresses do not share tips with bartenders), which was posted in response to a non-employee/relative’s question regarding how his night at work went. JT’s Porch Saloon & Eatery Ltd., NLRB Div. of Advice, No. 13-CA-46689, 7/7/11. The employee’s response complained that he hadn’t had a raise in five years, and that he was doing waitresses work without tips. He also called his customers “rednecks” and stated that he hoped they “choke on glass” as they drive home drunk. The postings were not discussed with other employees, either before or after the posting. The OGC opined that there was no evidence of the “concerted activity” protected by Section 8(a)(1) of the National Labor Relations Act (NLRA) and that, therefore, the firing of that individual because of his postings did not violate the NLRA.

Less than two weeks later, on July 19, 2011, the OGC responded to a request for advice regarding whether an employer unlawfully discharged an employee for inappropriate Facebook postings that referenced the employer’s mentally disabled clients. Martin House, NLRB Div. of Advice, No. 34-CA-12950, 7/19/11. In that instance, an employee of a non-profit residential facility for homeless people with significant mental health issues engaged in a Facebook “conversation” with a non-employee/friend in which she referenced a client’s “voices” and told her friend it was “spooky” to work in a “mental institution” at night. One of the employer’s former clients saw the postings and called to report her concern, and the employee was fired. The employer based its action on the premise that it is not “recovery oriented” to use the clients’ illnesses for personal amusement. The OGC pointed out that the employee was not seeking to induce to prepare for group action related to her job conditions. Instead, the postings were communications with non-employees/friends about what was happening on her shift. The OCG found that the employee was not fired in violation of the NLRA.

Also on July 19, 2011, the OGC responded to question as to whether a retail employer violated Section 8(a)(1) by disciplining an employee for posting profane comments, critical of local management, on his personal Facebook page.  In that circumstance, a customer service employee in Oklahoma posted comments to his Facebook page after interacting with a new Assistant Manager. The comments were read and responded to by co-workers. However, the responses consisted largely of “hang in there” type remarks, and did not reference terms and conditions of the work environment. The OGC determined that the company’s discharge of the individual was not a violation of the NLRA, because the postings were made “solely by and on behalf of the employee himself” and did not look seek to initiate or induce group action. According to the OGC “mere griping” is not protected activity.

These recent advisory letters indicate that the NLRB’s review of social media cases is developing further, but there still are no clear-cut directives on which employers can rely for advice. However, some newly developed resources are available. Earlier this year, the U.S. Chamber of Commerce submitted a Freedom of Information Act (FOIA) request to the NLRB, seeking “copies of all charges, complaints, and completed settlements related to social media.” In response, the Chamber received information going back to 2009 which included 117 charges, 7 complaints, and 5 settlement agreements, and compiled that information into a survey that is available for review. According to the Chamber, the purpose of this survey is to “summarize the publicly available information obtained through our FOIA request and other available sources regarding the NLRB’s caseload related to social media in an effort to help reveal the many areas where social media and labor law intersect—areas that will confront the Board, employers, and other stakeholders in the coming months and years.” Compiled by Michael J. Eastman, Executive Director, Labor Law Policy, U.S. Chamber of Commerce, this compilation is a “must-read” resource for employers. See Michael’s comments on the Chamber’s blog.
 

In order to support a claim of employment discrimination, an individual typically must show that an “adverse employment action” was taken, and that such action was based upon a protected characteristic. To constitute an adverse employment action for purposes for federal anti-discrimination laws, such action must create a significant change in an employee’s status, and includes firing, failure to promote, reassignment with significantly changed job responsibilities, or a significant change in other employee benefits. In an unpublished opinion, the 3d U.S. Circuit Court of Appeals recently joined a number of other circuits to hold that an employee’s Performance Improvement Plan (PIP) is not an adverse employment action, absent some accompanying changes to pay, benefits, or employment status. Reynolds v. Dept. of the Army, 3d Cir., No. 10-3600, July 22, 2011.

 

In 2004, after working for the federal government for a number of years, Raymond Reynolds took an engineering position with the U.S. Army’s Communications-Electronics Research, Development, and Engineering Center, located in Fort Monmouth, NJ. Reynolds’ supervisor (Kornwebel) felt that he did not take his job seriously, that he improperly delegated responsibilities to others, and that he failed to comply with her directives. In response, Reynolds denied the allegations of poor performance, claiming that Kornwebel treated him “dismissively” and had not provided clear job objectives.


In August 2004, Kornwebel assessed Reynolds’ performance, and found that he had failed to meet certain job goals. On November 3, she met with Reynolds and presented a PIP that allowed 90 days within which to improve his performance or face the possibility of reassignment, demotion, or termination. The day after that meeting, Reynolds applied for two early retirement incentive programs. In the following month, he filed a charge of discrimination with the EEOC, alleging age discrimination.


In order to support his claim of age discrimination, Reynolds had to show that he was at least 40 years old (he was 51 at the time), that he suffered an adverse employment action, that he was qualified for his position, and that he was replaced by a person sufficiently younger to support an inference of discriminatory animus. The district court concluded that Reynolds could not show that he was the subject of an adverse employment action, and granted summary judgment in favor of the Army.


The Third Circuit agreed, citing prior decisions by the Seventh, Eighth, and Tenth Circuits in which a PIP was determined not to have been an adverse employment action. According to the Third Circuit, a PIP “differs significantly” from the types of actions typically viewed as adverse. In fact, far from changing the status of an employment position, a PIP usually conveys to the employee ways in which an individual can better perform the responsibilities that he or she already has. The Court pointed out that to allow a PIP to be viewed as an adverse action would simply create greater frustration for employers seeking to improve and employee’s performances by taking an action that, in effect, would insure a discrimination claim.


It is worth noting here at although this holding seems beneficial to employers, it comes with one caviat: the Court’s reference to sister courts specifically notes that these other court decisions have concluded that a PIP is not an adverse employment action absent accompanying changes to pay, benefits, or employment status. Therefore, an employer who imposes a PIP while at the same time downgrading the employee’s pay, responsibilities, or other benefits could find that its actions are viewed as “adverse,” thereby potentially supporting an employee’s claim for discrimination.

The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from requesting, requiring, or purchasing genetic information. However, the Act sets forth specific exceptions to that prohibition, one of which allows an employer to acquire genetic information about an employee or that employee’s family members when the employer offers a wellness program to employees on a voluntary basis. In June of this year, the EEOC provided guidance – in the form of an opinion letter – on certain issues affecting workplace wellness programs.

The letter, which addresses issues related both to the GINA and to the Americans with Disabilities Act (ADA), responds to a specific request to the EEOC to make clear that offering incentives for participation in a wellness program does not violate the GINA or the ADA, and asking for assurance that family medical history that is voluntarily provided by employee in a wellness program may be used to guide employees into disease management programs.

The EEOC begins the opinion letter by pointing out that it classifies wellness programs as “voluntary” medical exam/activity, and that Title I of the ADA allows employers to conduct “voluntary” medical exams – specifically those including obtaining medical histories – so long as any medical information obtained is kept separate and apart from personnel records. However, the EEOC has not taken a position (and declined to do so in the opinion letter) on whether the ADA allows an employer to offer financial incentives for employees who participate in wellness programs that include disability-related inquiries or medical examinations.

The EEOC’s opinion letter states that GINA allows an employer to use genetic information voluntarily provided by an employee in order to “guide that individual into an appropriate disease management program.” However, the letter also spells out parameters related to the gathering and compilation of information for such programs. First, an employer who is coordinating a wellness program must obtain prior voluntary and knowing authorization from an employee, in writing, before acquiring genetic information for the program. Further, according to the EEOC’s opinion letter, any individually identifiable genetic information provided under the wellness program exception is available only for purposes of such services in aggregate terms that do not disclose the identity of specific individuals. Finally, an employer may not offer any financial inducement for individuals to provide genetic information for purposes of a wellness program. However, the wellness program may offer financial inducements for completion of health risk assessments that include questions about family medical history or other genetic information, provided the covered entity makes clear, in language reasonably likely to be understood by those completing the health risk assessment, that the inducement will be made available whether or not the participant answers questions regarding genetic information. In other words, if the assessment contains a mix of questions, certain of which are related to genetic information, any financial incentive paid to employees for participation in the assessment must be paid regardless of whether the individual answers the genetic information questions or not.

While an opinion letter from the EEOC does not have the force of law and does not typically receive the deference of a federal regulation, such letters are of interest to knowledgeable employers. As more and more companies begin to develop and institute wellness programs for employees, it is important to understand the way in which these programs will be viewed by the government agencies charged with regulating and assuring non-discrimination in their implementation.