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

Employer's New Dilemma - Working with Others?

June 2015

By: Walter J. Liszka, Esq.

There are a vast number of employers who have had to deal with employee issues related, in some way, to an “employee disability”.  There are very few situations arising under a workman’s compensation scenario that do not require the employer to make “reasonable accommodation” to an individual who is returning to work from a workman’s comp injury and needs “work hardening”.  That is just one of the few issues that arises and exposes an employer to the breadth of the Americans with Disabilities Act (ADA).

As almost everyone is aware, in 2008, the ADA was amended with the intent of broadening the definition of “disability”.  In point of fact, as Congress clearly stated, it was the intent of the Americans with Disabilities Amendment Act of 2008 to make it “easier” for people with disabilities to obtain protection under the ADA.  The regulation, specifically 29 C.F.R. Section 1630.1, clearly established that “the primary objective of the attention in cases brought under the ADA should be on whether the covered entities (i.e. employers) have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of a disability”.  Simply stated, it was the intent of Congress, through the amendments, to establish that determining whether or not an individual’s impairment was a disability cognizable under the ADA should not demand extensive analysis and not be in the basis to find “no coverage under ADA”.

Under a very recent case (Jacobs v. North Carolina Administrative Office of the Courts, No. 13-2212, United States Court of Appeals for the Fourth Circuit – March 12, 2015), the breadth of these amendments is now taking shape.  The Plaintiff in the above matter, Christina Jacobs, was initially hired as an Office Administrative Assistant in the Criminal Division of the North Carolina Administrative Offices of the Court and assigned the responsibility for microfilming and filing of documents.  Approximately a month later, she was promoted to Deputy Clerk, and her list of tasks expanded to record hearings assignments, possible court assignments and front desk customer service. Approximately one month into her employment, Jacobs was required to begin training to work at the front counter, but informed one of her supervisors that she has previously been treated for mental health issues and had been diagnosed with a social anxiety disorder.  She had been diagnosed, at the age of 10, with severe situation performance anxiety and at the age of 18, with “Social Anxiety Disorder”.  She requested, in an e-mail transmission to her three immediate supervisors (Deborah Excell, Jan Kennedy, and Melissa Griffin) that she be reassigned and trained in a different role, as an accommodation due to her Social Anxiety Disorder and not be assigned “front desk customer service”.  Simply stated, the Fourth Circuit Court of Appeals established that an individual who has an inability to interact with others or, in the alternative, suffers from anxiety when put in a situation of interacting with others may, in fact, be disabled. 
  
According to the Diagnostic and Statistical Manual of Mental Disorders [DSM-5(2013)], Social Anxiety Disorder is a “marked and persistent fear of social or performance situations in which a person is exposed to unfamiliar people or scrutiny of others”.  The “avoidance and/or anxious participation and/or distress” of being placed in a feared social performance situation affects the individual and causes that person’s normal routine to be impacted or disrupted from their normal occupational function.  Hence, Jacob’s concern about “front counter customer service”.

None of the three (3) supervisors acted on Jacobs' request and, in fact, indicated that they had no authority to act on this matter and that the authority solely resided with the Chief County Clerk, Brenda Tucker, who was then on vacation and who had hired Jacobs and promoted her to Deputy Clerk.  It should be noted that at no time during the term of her employment was Jacobs given any disciplinary action, performance review nor was she told that her job performance was below standard.  When Ms. Tucker returned from her vacation, she and the three (3) supervisors met with Jacobs, on or about September 29, 2009, and Tucker informed Jacobs that she was being terminated because she was “not getting it” and that the county had “no place to use Jacobs' services”.  This communication was made to Jacobs even though she had never been written up for any disciplinary infraction or performance issue nor did her personnel file indicate any problems with her performance. 

Needless to say, Jacobs filed a Charge of Discrimination alleging that she had been terminated due to her disability (Social Anxiety Disorder) and a favorable result emanated from the EEOC.  While the initial legal proceedings were dismissed by the District Court (U.S. District Court, Eastern District of North Carolina) under a summary judgment request by the County, on appeal, the Fourth Circuit reversed the District Court’s dismissal and agreed with the Equal Employment Opportunity Commission’s view that “interacting with others” is a major life activity and that “social anxiety disorder as a condition” interferes significantly with the person’s normal routine, occupational activities, functioning, and social activities and relationships and was a “disability” under the revised ADA.

While this type of decision gives a broad expanse to ADA coverage, and a potential of “great exposure” for any employer (how many jobs do not involve exposure to other people or scrutiny by others), it should also not go unnoticed that a factor in the Fourth Circuit Court of Appeals decision was their belief that the Clerk’s Office was attempting to create “pretext” to justify their action in terminating Jacobs (i.e. create a “solid discipline basis to terminate”).  As previously stated, during Jacobs' employment, there were no disciplinary actions showing lack of performance, nor, for that matter, any notes in her personnel file that established performance related problems.  In point of fact, Ms. Tucker had promoted Jacobs after a month on the job!  The fact that the county attempted to use performance related issues as a basis for the termination was probably a major factor in this case being decided in Jacobs' favor.

The author is aware of very few employment locations in which individuals are not required to interact with fellow employees or clients and this decision creates a fairly wide chasm for employer exposure.  Social Anxiety Disorder is not rare and if faced with the issue, great care must be taken to avoid the “pitfalls of liability”. Also, please note that, as in any situation dealing with employees, accurate and complete performance records are a must, especially if a person is, in fact, not doing all required job tasks.  Remember, to be entitled to a “reasonable accommodation” under the ADA, the individual must be able to perform “essential job duties”.

Questions? Call Attorney Walter J. Liszka of Wessels Sherman’s Chicago office: 312-629-9300 or email 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 .