special focus - jackson lewis · 2013-11-08 · change,” the equal employment opportunity...
TRANSCRIPT
Vol. 29, No. 9 September 2012
(Continued on Page 2)
Citing an “opportune moment to aim for bold and transformative change,” the equal employment opportunity Commission has released on September 4th its Draft Strategic enforcement plan (the “plan”). eeoC lists systemic recruiting and hiring discrimination as its first priority, followed by protecting immigrant and migrant workers from discrimination. the eeoC also committed to investigating “emerging” issues, including
SpeCIAl FoCUSexamining common Americans with Disabilities Act defenses invoked by employers, utilizing title VII of the Civil rights Act to protect members of the lGbt community, and pushing employers to accommodate pregnant women.
While complaining about insufficient funding, the eeoC stressed that it is “better situated” to attack recruitment and hiring discrimination than individuals or private attorneys because of the eeoC’s access to data and documents. Although not referencing the U.S. Supreme Court’s 2011 Wal-Mart v. Dukes ruling on class actions in the plan, the eeoC’s claim certainly indicates that the agency will pursue aggressively employment practices that may be abandoned by the private plaintiffs’ bar in light of the Supreme Court’s ruling — the eeoC is not constrained by the class action requirements of rule 23 of the Federal rules of Civil procedures. (For more information on the Supreme Court ruling, see Supreme Court reverses Certification of Nationwide Class of 1.5 million Female Workers at http://www.jacksonlewis.com/resources.php?NewsID=3820.)
With its reference to accessing employer “data and documents,” the eeoC clearly intends to further ramp up its already aggressive subpoena efforts. In the past, each eeoC District office has at times limited its hiring discrimination investigations to businesses in its own territory. However, the plan stresses that investigation and litigation will not be so limited in the future. Instead, the eeoC will pursue policies and practices on a “company-wide” basis. Additionally, the plan commits to a “multi-year research” effort to coordinate strategic enforcement, indicating the agency will be utilizing its access to eeo-1 data in determining vulnerabilities among particular employers and industries.
the eeoC lists “pre-employment tests, background screens, and date of birth screens in online applications” as particular employment practices of interest. the plan also states that the eeoC will focus on “channeling/steering of individuals into specific job due to their status in a particular group.”
the eeoC pledges some relief from an “all litigation” model in the areas of harassment and retaliation. According to the plan, despite “all the eeoC’s administrative and legal enforcement efforts” that have been devoted over the years to combating retaliation and harassment, those forms of discrimination
EEOC RELEASES AGGRESSIVE STRATEGIC
ENFORCEMENT PLAN FOCUSED ON
DISCRIMINATION IN HIRING AND RECRUITMENT
WHAT’S INSIDEReverse Discrimination is Discrimination Where Immigration Violations are Present ....................................................................................2
$750,000 EEOC Settlement Highlights Pitfalls of Drug Testing for Prescription Medications by Employers .........................................................3
New I-9 Form in the Works; Use Expired Form Until Further Notice .5
Federal Court Panel Hears Arguments on NLRb Workers’ Rights Posting Requirement ...........................................................................................6
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EEOC RELEASES AGGRESSIVE STRATEGIC ENFORCEMENT PLAN FOCUSED ON DISCRIMINATION IN HIRING AND RECRUITMENT
(Continued from page 1)
continue to persist. Accordingly, the plan commits to redirecting some of the eeoC’s efforts to “national education and outreach.”
After inviting stakeholders to provide comments on the draft plan by September 18, 2012, the eeoC indicated it will approve a final version of the plan by the end of its fiscal year (September 30, 2012).
Jackson lewis llp advises employers on compliance with all statutes enforced
by the eeoC, works with the eeoC to resolve individual and class matters on terms favorable to its clients and defends such matters in court when early resolution is not feasible. please contact your Jackson lewis attorney with any questions about the eeoC plan or other workplace development.
-- Jill l. poole omaha office [email protected]
-- paul patten
Chicago office
-- mickey Silberman
Denver office
-- Garen e. Doge
Washington DC region office
mississippi, plant in which agents found 592 illegal immigrants working there. Howard agreed to a $2.5 million fine and a year of probation after pleading guilty to violating immigration law.
A day after Howard’s guilty plea, four black women filed the class action suit, alleging that they repeatedly were denied jobs at the company’s laurel plant and that Howard “refused to hire non-latino job applicants, or considered their applications with disfavor, due to their race.” the plaintiffs claimed they were denied employment despite passing examinations and drug tests required by the company, and all four were hired shortly after the August 2008 immigration raid.
“Howard Industries devised, implemented, carried out, and controlled an employment policy whereby latino job applicants, all or nearly all being undocumented … immigrants, were given preferential treatment in hiring,” the complaint said. Court documents involving the company’s alleged criminal immigration violations alleged that Howard’s former human resources director routinely hired undocumented workers, telling them they would be warned if immigration agents were coming for inspection.
Jackson lewis attorneys are available to discuss the implications of this settlement and other workplace issues.
-- Amy l. peck omaha office [email protected]
-- melina V. Villalobos omaha office [email protected]
REVERSE DISCRIMINATION IS DISCRIMINATION WHERE IMMIGRATION VIOLATIONS ARE PRESENT
reverse discrimination is defined as the practice or policy of favoring individuals belonging to groups known to have been discriminated against previously. reverse discrimination is often alleged, but difficult to prove. A recent class action settlement, however, has revealed that a documented preference for hiring latino workers who are ineligible to work in the U.S. may not only make an employer liable for immigration violations, but also reverse discrimination.
on August 20, 2012, Howard Industries, Inc., one of mississippi’s largest employers, agreed to pay $1.3 million to settle a class action suit claiming the company showed favoritism to latino employees and discriminated against all non-latino employees. the settlement, if approved, would certify a class of all black and non-Hispanic white applicants who applied for work at Howard between January 1, 2003, and August 25, 2008, but were not hired.
the suit was filed after Howard pleaded guilty in February 2011 to charges that it concealed undocumented workers from federal immigration authorities. the charges were the result of an August 2008 federal immigration raid of Howard’s laurel,
IMMIGRATION UPDATE
Amy Peck is a nationally recognized immigration attorney practicing out of the Jackson Lewis LLP Omaha, Nebraska office.
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the ADA, and therefore, such tests must be “job-related and consistent with business necessity.”
• employers should not have blanket rules prohibiting employees from using certain prescription medications (even for good faith, safety reasons) without undertaking an individualized assessment of the particular employee’s situation, as required by the ADA.
• All positive drug test results for prescription medications should be reviewed by a medical review officer (i.e., a licensed physician with expertise in analyzing drug test results) to determine whether the employee’s use of the prescription medication is legal and explain the positive test result. For employees in non-safety-sensitive positions, employers need not conduct further analysis once the mro has verified the test result as positive or negative. However, if there is a finding of legitimate use of prescription medication by an employee in a safety-sensitive position, the employer will need to conduct an individualized assessment to determine whether the particular employee can perform the essential functions of his or her job, with or without reasonable accommodations, and without posing a direct threat of harm to the health or safety of himself or herself or others.
• Drug test results are confidential and must be handled in the same confidential manner as medical records.
• Where it is legally permissible to do so, employers who conduct drug testing on their own premises must ensure the confidentiality of the testing process and the test results for each individual tested.
-- Christopher e. Hoyme omaha office [email protected]
-- roger S. Kaplan long Island office [email protected]
-- Kathryn J. russo long Island office [email protected]
$750,000 EEOC SETTLEMENT HIGHLIGHTS PITFALLS OF DRUG TESTING FOR
PRESCRIPTION MEDICATIONS bY EMPLOYERSAn auto parts manufacturer has entered into a consent decree with the equal employment opportunity Commission requiring it to pay $750,000 to a group of current and former employees at its lawrenceburg, tennessee facility based on allegations that company drug testing practices violated the Americans with Disabilities Act. EEOC v. Dura Automotive Systems, Inc., CV No. 1:09-cv-0059 (m.D. tenn. Aug. 31, 2012).
the eeoC alleged that the company tested all of its lawrenceburg employees in may 2007 for 12 substances, including certain legally prescribed drugs, in violation of the ADA. It alleged that the company required those employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking the medications. the company also made it a condition of employment that the employees cease taking these medications, without any evidence that they affected the employees’ job performance. According to the eeoC, the company then suspended employees until they stopped taking their prescription medications and fired those who were unable to perform their job duties without the benefit of the medications. Finally, the eeoC alleged that the company effectively announced individual test results to all employees by informing workers of positive test results in common areas where others were waiting to be tested and requiring those who tested positive to remain in a separate group and away from their work stations.
In addition to the monetary settlement, the company also was enjoined from making medical inquiries and conducting medication examinations that are prohibited by the ADA, from conducting employee drug tests that are not job-related or consistent with business necessity, and from disclosing illegally confidential information obtained through medical inquiries of employees, among other things.
Lessons for Employers
this case highlights some of the dangers for employers in drug testing for prescription medications. Specifically:
• Unlike drug tests for illegal drugs, the eeoC considers tests for prescription medications to be medical examinations under
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• employers are authorized to receive expired documents and receipt notices is certain instances.
• Attempts by employers to use section 3 to re-verify U.S. citizens and lawful permanent residents is strictly prohibited.
• the election as an “alien authorized to work” has been greatly expanded to include separate sections for alien registration/USCIS number identification (limited to 9 digits) AND for aliens presenting an I-94 (expanded to 11 digits).
• An alien authorized to work utilizing an I-94 also is required to include his or her foreign passport number and country of issuance.
• the list of acceptable documents has two significant changes: the list A foreign passport/I-94 combination is divided into subparts, and the list C Social Security Card section provides examples of the annotations that make the card invalid for I-9 purposes.
employers must complete a Form I-9 for each newly-hired employee to verify the individual’s identity and authorization to work in the United States. Failure to comply with this obligation may result in criminal prosecution. even paperwork violations can expose employers to administrative fines of up to $1,100 per form. thus, it is critical that all employers make verification compliance a high priority.
please feel free to call one of our I-9 compliance attorneys if you have any questions.
-- Jessica A. Feinstein omaha office [email protected]
NEW I-9 FORM IN THE WORKS; USE EXPIRED FORM UNTIL FURTHER NOTICE
the current Form I-9 expired on August 31, 2012. U.S. Citizenship and Immigration Services (USCIS) has been developing a new Form I-9, but the new form is not yet finalized. employers are instructed by USCIS to continue to use the current Form I-9 until a new form is issued.
the new form is unlikely to be issued until early 2013, but USCIS has released a proposed form. Highlights of the proposed changes include:
• the form will become 2 pages.
• “employers” is defined in the instructions.
• “time of hire” is redefined as “no later than the first day of work for pay.”
• last name has been clarified to include “two last names or a hyphenated last name.”
• employees are instruction to note, “N/A” if they have no maiden name.
• p.o. boxes are no longer acceptable in the address field.
• An e-mail and telephone number field has been added (to assist the Department of Homeland Security (DHS) in contacting the employee), which are optional.
• the citizenship or immigration status boxes have been defined.
• A new set of instructions for minors and certain disabled employees.
• the thursday rule (providing for completion of section 2 prior to close of business on the thursday after a monday hire) is identified and authorized.
• Specific instructions are provided to employers hiring foreign students.
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FEDERAL COURT PANEL HEARS ARGUMENTS ON
NLRb WORKERS’ RIGHTS POSTING REQUIREMENT
A hearing before a panel of federal appeals court judges is the latest development on the issue of whether the National labor relations board has authority to require all employers covered by the National labor relations Act to post a notice informing employees of their right to organize, providing contact information for the Nlrb, and describing basic enforcement procedures. the D.C. Circuit panel on September 11, 2012, heard business groups argue that the Nlrb exceeded its authority by issuing a final rule on “Notification of employee rights under the National labor relations Act” on August 25, 2011. National Association of Manufacturers v. NLRB, No. 12-5068.
this case was appealed to the D.C. Circuit after federal district court Judge Amy berman Jackson ruled in march that the board had the authority to require the notice posting. Judge Jackson held, however, that the Nlrb exceeded its authority by promulgating provisions that permit it to deem a failure to post an unfair labor practice, and to toll the statute of limitations for charges brought by employees against employers who failed to post the notice. (For more information, please see Judge Finds Nlrb Workers’ rights posting requirement lawful, but Strikes Ulp and tolling provisions at http://www.jacksonlewis.com/resources.php?NewsID=4043.)
Another case challenging the rule is pending in the U.S. Court of Appeals for the Fourth Circuit (richmond). In that case, Chief Judge David C. Norton of the federal District Court of South Carolina found that in promulgating its final rule, the Nlrb exceeded its authority, in violation of the Administrative procedure Act. (For more information, please see Nlrb Workers’ rights posting requirement is Unlawful, Federal Judge in SC Holds at http://www.jacksonlewis.com/resources.php?NewsID=4067.) the opening brief is due to the Fourth Circuit on September 28, 2012.
While these appeals are pending, the board has indicated it will not implement the rule. However, federal contractors still are required to post a similar notice pursuant to a separate presidential executive order, which remains in effect. (For more information, please see, Dol Final regulations on Contractors’ obligation to Notify employees of organizing rights (eo 13496), at http://www.jacksonlewis.com/resources.php?NewsID=3300 or Special report: Dol Final regulations on Contractors’ obligation to Notify employees of organizing rights (eo 13496) at http://www.jacksonlewis.com/resources.php?NewsID=3875.)
-- Christopher e. Hoyme omaha office [email protected]
-- philip b. rosen New York office [email protected]
-- Harold r. Weinrich Washington D.C. region office [email protected]