EEOC Still Very Active

The Equal Employment Opportunity Commission ended its Fiscal Year 2015 on a relatively high note. There were a total of 89,385 Charges filed during Fiscal Year 2015. Those Charges reflect the following breakdown:

• Retaliation Charges: 39,757 (44.5% of all Charges filed)
• Race: 31,027 (35.7%)
• Disability: 26,968 (30.2%)
• Sex: 26,396 (29.5%)
• Age: 20,144 (22.5%)
• National Origin: 9,438 (10.6%)
• Religion: 3,502 (3.9%)
• Color: 2,833 (3.2%)
• Equal Pay Act: 973 (1.1%)
• Genetic Information Non-Discrimination Act: 257 (.3%)

It should be noted that if one were to add up the actual percentages, this would reflect more than 100% because some Charges are predicated on multiple basis filings.

Also, during Fiscal Year 2015, the Equal Employment Opportunity Commission resolved a total of 92,000 Charges of Discrimination and secured in excess of $527,000,000 for victims of discrimination (356.6 million for victims of discrimination in Private Sector and State and Local Government workplaces; 65.3 million through litigation and 105.7 million for Federal Employees and Applicants). 

It should also be noted that the Equal Employment Opportunity Commission is pursuing, very aggressively, discrimination against an individual because of his/her sexual orientation and pursuing this on the basis that this type of discrimination is predicated on sex. The EEOC has also been aggressively pursuing, through litigation, the protection of transgender individuals in the workplace, both in the job protection venue and in the day-to-day interaction in the workplace (i.e. use of facilities). Fiscal Year 2016 will see a big push in this arena. 

So there is no confusion on anyone’s part, from Fiscal 1997 through Fiscal 2015 the EEOC handled a total number of 1,637,396 Charges or, on a Fiscal Year average, a little over 86,000 Charges per year. Obviously, every Employer, be that a Private Employer, State or Local Government Employer, or Federal Government Employer, should take notice that the Equal Employment Opportunity Commission is a very aggressive Agency in protecting the rights of individuals under the auspices of Title VII and other Laws.

Questions? Contact Attorney Walter J. Liszka at (312) 629-9300 or by email at waliszka@wesselssherman.com.

Bye-Bye Franchisee

August 2014
By: Walter J. Liszka, Esq.

The first "nail in the coffin" in doing away with the franchisor/franchisee relationship and jeopardizing a vast number of small business operators in this country (estimated at a little over 85% in the restaurant industry), has been "nailed" by the National Labor Relations Board (NLRB) General Counsel. Robert F. Griffin, Jr., who was sworn in for a four (4) year term as General Counsel of the NLRB on November 4, 2013 and, as an aside, was a NLRB member from January 9, 2012 through August 2, 2013, has issued notifications to various NLRB Regional Offices that they are authorized to proceed with forty-three (43) complaints of Unfair Labor Practices against not only the franchisees of the locus of the dispute but, as well, against McDonald's, USA as a "joint employer." While there were a vast number of complaints filed against McDonald's franchisees and McDonald's since November 2012 (a total of 181 complaints), in his own authoritative way, General Counsel Griffin has authorized not only the issuance of the aforementioned forty-three (43) complaints but continuing investigation of sixty-four (64) other cases by his office to see if complaints should issue in these cases.

It is extremely interesting to note that the General Counsel's action runs parallel to the consideration by the NLRB in a separate and distinct matter (Browning-Ferris) as to whether or not the current standard used by the NLRB (currently legally separate and distinct business entities that in unison exert a significant and direct degree of control over employees and their essential "terms and conditions of employment" are considered as joint employers) should be changed. Under the approach being taken by the General Counsel, he wants to change that standard even though there is in place a very distinct and currently legally enforceable franchise agreement between McDonald's and its franchisees that requires the franchisees to comply with certain requirements dealing with food purchases and preparation of foods to protect the McDonald's brand, but cedes to the individual franchisees all control over hiring, firing, and determining the terms and conditions of employment of their employees.

While the directive of the General Counsel of the NLRB is not law and, in fact, does not have to be followed by the NLRB itself, it is indeed curious that it comes out in parallel to the current pending of the Browning-Ferris case. There may be other very serious issues for employers, be they a franchisor or franchisee, with regard to the actions of the NLRB General Counsel.

As everyone is well aware, there is afoot a ground swell of employee protests against McDonald's and various other fast food entities for an increase in the minimum wage. This effort is being strongly supported by the Service Employees' Union. Companion to this effort to increase the minimum wage through employee protests, the "all omnipotent President Obama" has seen fit to issue another of his numerous Executive Orders increasing the minimum wage for employees of all federal contractors. Are these merely concentric circles that are spinning on their own axis in the night with no connection? If any reader of this article believes that, the author has some real cheap land in Florida because it is under water!

There is no doubt in the mind of the author that should NLRB General Counsel Griffin's approach on joint employer status gain traction, it will quickly be adopted by other federal governmental agencies (EEOC and USDOL Wage and Hour Division) with regard to their investigations of "joint employers." Certainly the next few years of the Obama Administration and his "lap dog" appointees in all government agencies are going to be very interesting.

 
Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .

Your Government at Work

March 2014
By: Walter J. Liszka, Esq.

With the fiscal year of the United States Government ending as of September 30, 2013, various government agencies have issued their "Fiscal Year Reports" with regard to what they have been able to accomplish during Fiscal 2013. Two of the most important agencies as far as their effect on business entities are the Equal Employment Opportunity Commission (EEOC) and the United States Department of Labor, Wage and Hour Division (WHD).

With regard to the EEOC, they indicate that during Fiscal 2013, they received a total of 93,727 Charges of Discrimination in the private sector and, during that same time period, were able to resolve a total of 97,252 charges. Obviously, the "difference in numbers" represents charges that were in existence and filed with the EEOC prior to the commencement of Fiscal 2013. It should also be noted that the EEOC's Performance and Accountability Report for Fiscal 2013 indicates that the EEOC was able to obtain $372.1 million in relief from private companies through administrative enforcement activities including litigation, mediation, settlement, and conciliation. This figure represents approximately a $6.7 million increase over the last fiscal year (Fiscal 2012) which was in itself a record breaking number at approximately 365.2. These "EEOC benefit recoveries" were obtained for more than 70,522 people. It should be noted that in Fiscal 2013, the EEOC was focused on systemic investigations and, based on their Report, in these systemic investigations, there were a total of 63 settlements or conciliation agreements that recovered approximately $40 million of the previously referenced $372.1 million.

With regard to the WHD enforcement ending as of September 30, 2013, the Wage and Hour Division was able to recover $249,954,412 in back wages that impacted more than 269,000 workers. The WHD since approximately the beginning of Fiscal 2009 has been able to close 145,884 cases nationwide which has resulted in more than $1 billion in back wages for over 1.2 million affected individuals.

Obviously, the EEOC and WHD are hard at work protecting private sector employees. There is no doubt in the writer's mind that Fiscal 2014 will continue much of the same on behalf of the EEOC and WHD.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

Here Comes the EEOC!

August 2014
By: Walter J. Liszka

As most private employers are well aware, numerous federal and state government agencies conduct on-site investigations and have been doing so for a long period of time [for example, Occupational Safety and Health Administration (OSHA inspectors) and United States Department of Labor (USDOL inspectors)]. Soon to be joining this array of "government visitors" is the Equal Employment Opportunity Commission (EEOC). The EEOC is engaging in a new and more aggressive investigation strategy. It will no longer accept an employer's Position Statement at face value and is now demanding on-site visits to interview witnesses and gather information. It is the opinion of the author that these "on-site visits" are merely "fishing expeditions" conducted by the EEOC to gather any and all harmful information it can find out about an employer, be it for the case at issue or to develop a bigger case in the future. Suffice it to say that during these investigations, the EEOC representative will do everything he/she can to "bait the hook" and catch the biggest fish.

Obviously, these EEOC on-site investigations offer very little benefit to an employer. A wise employer must be prepared for this scenario and preparation should follow at least the following concepts:

• The EEOC investigator will want to have a tour or walk-around of the employer's facility which is the alleged sites of the alleged discriminatory activity referenced in the Charge of Discrimination. The wise employer will make absolutely certain that all required federal and state employment law posters are posted and readily available and viewable by employees. The wise employer will also "protect itself" from obvious violations of laws administered by other federal agencies (for example, OSHA safety regulations) because it is a well-known fact that government investigators from one (1) agency who have no authority to enforce a law or statutory responsibility will pass on the alleged violation to their compatriots in the agency that does enforce that law. It is an absolute necessity that the EEOC investigator be accompanied at all times on the tour by a designated employer representative. The chosen individual should be familiar with the facility and comfortable in representing the employer in dealing with the investigator.
  
• The EEOC investigator will, in all probability, come for the on-site investigation after the employer has filed its written Position Statement and/or provided any requested evidence. The investigator will question witnesses, both rank-and-file and management personnel, to see if the stories match the Position Statement. That being the case, it is an absolute necessity that any management personnel who have any involvement in the alleged discrimination claim review the Charge of Discrimination and the company's written Position Statement and any evidence provided so they can familiarize themselves with the case and not jeopardize the employer's presentation by a contrary or ill-timed response. Any management personnel who have no knowledge or involvement in the Charge at issue should clearly tell the investigator they are not involved in the matter!
  
• The EEOC investigators will "grill" any Human Resources representative with regard to his/her general knowledge of employment laws, potentially his/her educational training, and what training is provided to management personnel and rank-and-file employees with regard to discrimination and harassment. The old adage, "ignorance of the law is no excuse," is extremely important with regard to Human Resources representatives. They should be extremely knowledgeable of anti-discrimination laws and the employer's obligations under those laws. If, for example, there is no Human Resources representative on-site, the employer should have in place someone in the management ranks at that facility who is knowledgeable about Human Resources issues and can accurately identify the individual within the employer's organization whom that person contacts for guidance and training in Human Resources issues.
  
• Whomever the designated representative is of the employer who escorts the EEOC investigator and is present during interviews of management personnel should be doubly knowledgeable about the employer's written Position Statement and any evidence presented in its defense to the Charge. If, for example, the EEOC investigator is slanting questions in a certain way to draw a harmful response or, in the alternative, is totally ignoring the employer's presented evidence, this person should bring that to the attention of the EEOC investigator to make sure that a "complete and accurate record" is developed.

The employer must also consider whether or not it wishes its counsel who is representing them in the EEOC matter, to be present for the on-site investigation. While some readers of this article will view this comment as the author's attempt to sell an employer on bringing its attorney on-site and therefore engendering larger attorney's fees, the old adage of "penny wise, dollar foolish" may come into play. Counsel certainly will be skilled in how to deal with the investigator and probably better able to control/direct the investigation.

It is obviously the choice of the employer as to how to proceed with regard to any EEOC investigation and certainly how to proceed with regard to an on-site investigation. Good preparation and strategies are important in this regard. Certainly the EEOC investigator will be "baiting their hook" to catch the biggest fish. If an Employer wants to win and avoid prolonged problems with an EEOC Charge, it will make sure that all of the potential fish have been well fed prior to the EEOC investigator's arrival and are able and willing to avoid the bait.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .

The EEOC - At it Again

August 2012
By: Walter J. Liszka, Esq.

We have all seen over the last number of years that the tentacles of government involvement - on both federal and state levels - have drastically increased the costs to business and the potential liabilities of an employer for alleged discriminatory practices. For many employers, credit checks and criminal background checks are absolute necessities, but be it the Federal Trade Commission or the Equal Employment Opportunity Commission, these agencies have attempted to chip away at the employer's right to perform these checks over the last few years. On or about April 25, 2012, the EEOC released their new Enforcement Guidelines for employers dealing with criminal background checks and the clear emphasis that it is the EEOC's presumption that consideration of a criminal history is patently unlawful unless the involved employer can prove that its policy is narrowly tailored, clearly job-related, and consistent with business necessity.

The EEOC premises its position on the fact that criminal background checks have a presumed disparate impact on African American and Hispanic job applicants. Based on recent statistics in calendar year 2009, African Americans comprise about 40% of the prison and jail population, while they only represent approximately 13% of the total United States population. Hispanics make up approximately 21% of the prison and jail population and yet represent a little over 16% of the total United States population. Obviously, there is some validity to the EEOC's position that criminal background checks could have a disparate impact on African Americans and Hispanics. The Commission's Enforcement Guidelines reiterate that there are a number of factors that the employer must consider when evaluating applicants' conviction records to establish business necessity:

• The nature and gravity of the convicted offenses;

• The amount of time that has passed from the date of conviction and/or completion of sentence to the application date; and

• The type of job to be held.

The EEOC also expects that in all cases where an individual's criminal history has been used as a basis to deny employment, the employer must inform the involved individual that he/she has been excluded because of their past criminal conduct and provide an opportunity to the involved individual to demonstrate that he/she should not be excluded because of this past history. Although the guidelines provided by the EEOC regarding criminal history issues state that "individualized assessments" are not required in every case, the EEOC also clearly states that such "individualized assessments" may help an employer better explain the reasons for its decision and thereby evade responsibility under Title VII.

While the Enforcement Guidelines recognize that, based on certain federal laws or regulations, employers may be barred in certain industries from hiring individuals with particular criminal convictions, the Commission takes the position that compliance with similar state laws will not shield an employer from liability because those state laws may be pre-empted by the expanse of Title VII. While this may have questionable legal standing, the Commission supports its position on pre-emption predicated on the fact that state laws have been struck down, that on their face mandated discriminatory practices such as limitations on the number of hours of work women could do or weight-lifting requirements. Whether or not this standard will be followed in the course of litigation is subject to speculation, but with the number of EEOC litigations in the past 10 years increasing almost exponentially, which employer wants to be the "guinea pig" to test this standard?

In light of these developments, all employers who are currently using criminal background checks as part of their hiring process should re-examine their policies and make sure that they are narrowly tailored to meet the business needs. In the opinion of the author, the nature of the job sought to be held must have a direct correlation to the exclusion because of previous criminal activity.

Questions? Contact Walter Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com . 

Courts Bend the "Golden Rule"

June 2014
By: Walter J. Liszka, Esq.

Since I was a child back in the early 1950s, I was taught many things by my parents, including "treat others as you want to be treated" and "do not steal or take other people's property." Obviously, the Federal Court System and, specifically, U.S. District Court Judge William H. Orrick, have either never been taught these rules or they have conveniently been forgotten!

Judge Orrick, on Friday, April 11, 2014, refused to throw out an Equal Employment Opportunity Commission (EEOC) lawsuit against the Walgreen Company saying that the Walgreen Company had violated the Americans with Disabilities Act (ADA) when it fired a diabetic employee for eating an unpurchased bag of potato chips to stabilize her blood sugar. Judge Orrick's rejection of Walgreen's Motion for Summary Judgment allows the EEOC to continue to pursue its suit over the firing of Josephina Hernandez, who claims she opened and ate a $1.39 bag of chips to starve off a hypoglycemic attack. This taking of an unpaid-for $1.39 bag of chips is in clear violation of the anti-grazing policy of the Walgreen Company which estimates that it loses approximately $350 million in employee theft on a yearly basis. It should be noted that Hernandez claims that "there was no cashier available to take her payment for the chips." In the opinion of the writer, based on his personal observations and employment by the Walgreen Company for seventeen (17) years, if anyone believes that story, they would believe anything and everything the EEOC and Federal Government say!!

Does this now mean that employers cannot enforce theft policies against employees? Does this now mean that a pharmacist for the Walgreen Company or any other organization can "help himself or herself" to some prescription medication without a prescription? Does this now mean that taking "medical marijuana" is not subject to termination for reporting to work under the influence of a drug? Does this now mean that an employee who alleges that they are suffering from some disability can "help themselves to some cash" from the petty cash drawer to pay "in the future" for needed medication?

I am sure that my parents would "roll over in their graves" if they discovered that I was not following their teachings. Clearly, Judge Orrick and the EEOC would not be subject to concern or consternation because they obviously can excuse stealing. Time will tell how much "breaking of the rules" the EEOC or other government agencies will allow. Not surprising under our current administration!

Questions? Contact Walter Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .