Wednesday, February 24, 2016

February 2016 Edition of the Employment Law Blog Carnival

This month's edition of the Employment Law Blog Carnival was hosted by Donna Ballman over at her blog, "Screw You Guys, I'm Going Home."  Check it out here

Tuesday, February 23, 2016

EEOC Implements New Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties

The Equal Employment Opportunity Commission ("EEOC") recently announced some fairly big changes to their complaint process.  As of the first of this year, upon request, the EEOC will release Respondent position statements and non-confidential attachments to a Charging Party or her representative during the investigation of her charge of discrimination.

From the EEOC's press release on the new procedure:
During the investigation of a charge, EEOC may request that the Respondent employer submit a position statement and documents supporting its position. EEOC's resource guide for Respondents, "Effective Position Statements," advises Respondents to focus their position statements on the facts relevant to the charge of discrimination and to identify the specific documents and evidence supporting its position.  A position statement focused on the allegations of the charge helps EEOC accelerate the investigation and tailor its requests for additional information.

A Respondent generally has 30 days to gather the information requested and to submit its position statement and attachments to the EEOC. If the Respondent relies on confidential information in its position statement, it should provide such information in separately labeled attachments. With EEOC's new Digital Charge System, Respondents can upload their position statement and attachments into the digital charge file rather than faxing or mailing the documents.
After EEOC reviews the Respondent's position statement and attachments on a specific charge, EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.

EEOC will provide the Respondent's position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days. The Charging Party's response will not be provided to Respondent during the investigation.
The EEOC will notify charging parties of their ability to request Respondent position statements and supporting documents and if the charging party or their representative wants to view these, they request it through the investigator assigned to the charge.  Further, the EEOC has identified the following items as potentially "confidential":
  • Sensitive medical information (except for the Charging Party's medical information).
  • Social Security Numbers.
  • Confidential commercial or confidential financial information.
  • Trade secrets information.
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.
  • Any reference to charges filed against the Respondent by other charging parties.

Wednesday, February 17, 2016

9th Cir. Upholds Summary Judgment Finding Employee's Objection to Designation of Complaint Not Protected Activity

The whistleblower retaliation provision of the Energy Reorganization Act ("Act"), 42 U.S.C. § 5851, protects energy workers who report or otherwise act upon safety concerns.  The Act also specifically prohibits employers from discharging or otherwise discriminating against employees for several enumerated acts and also includes a catch-all provision protecting employees "in any other action to carry out the purposes of this chapter...."  42 U.S.C. § 5851 (a)(1)(F).  

To establish a prima facie case of retaliation under the Act, an employee must show that:

(1) he engaged in a protected activity;
(2) the respondent knew or suspected ... that the employee engaged in the protected activity;
(3) [t]he employee suffered an adverse action; and 
(4) [t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action.

Under the Act's burden-shifting approach to retaliation claims, if an employee shows that his participation in protected activity was a contributing factor in the unfavorable personnel action alleged, the burden shifts to the employer to rebut the employee's prima facie case by introducing "clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the employee's participation in such behavior."  42 U.S.C. § 5851(b)(3)(D).


Plaintiff David W. Sanders ("Sanders") worked for Defendant Energy Northwest, a Washington municipal corporation that owns and operates a nuclear power plant in Richland, WA.  Sanders was a maintenance manager whose responsibilities included overseeing maintenance contractors working at the power plant, and he also administered temporary staffing contracts for the Defendant.  

After 19 years of employment, Energy Northwest terminated Sanders' employment, alleging that he had improperly approved temporary staffing per diem and travel payments to the father of his daughter's child.  Sanders alleged that he was terminated for engaging in protected activity under the whistleblower retaliation provision of 42 U.S.C. § 5851.  More specifically, Sanders claims that his objection to the severity level designation of an internal "condition report" constitutes protected activity under the Act.  A "condition report" in a report generated by employees when safety procedures may have been violated.  Energy Northwest, as a Nuclear Regulatory Commission likeness, is required to maintain an internal system for documenting potential safety violations.

Employees at Energy Northwest are encouraged to create condition reports on any issue perceived to pose safety concerns.  Once a condition report is created, a condition review group meets to determine the severity level of the report.  This group reviews each condition report and assigns a level of severity in decreasing order of severity.  The condition review group has latitude in its designation decisions.  After a severity designation is made, the condition report is reviewed in an operational focus meeting to ensure that remediation is properly undertaken.

One such report was generated and Sanders objected over the designation this report received.  He contended that this objection constitutes protected activity under the whistleblower protections of the Act.  on September 1, 2011, Sanders filed a whistleblower complaint with the Department of Labor ("DOL").  The DOL failed to issue a final decision within 1 year, which allowed Sanders to file a complaint in federal district court.  The district court granted summary judgment in favor of Energy Northwest on the ground that Sanders failed to establish a prima facie case of retaliation because his activity did not "rise to the level of protected activity under the Act or the associated case law."  Sanders then appealed to the Court of Appeals for the Ninth Circuit, who affirmed the lower court's decision.

9th Circuit Upholds Summary Judgment in Favor of Defendant Energy Northwest

In upholding summary judgment in favor of the Defendant, the 9th Circuit cited the 11th Circuit's decision in Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995) whereby the 11th Circuit noted that a broad interpretation is appropriate because "it promotes the remedial purposes of the statute and avoids the unwitting consequence of preemptive retaliation, which would allow the whistleblowers to be fired or otherwise discriminated against with impunity for internal complaints before they have a chance to bring them before an appropriate agency."  In Bechtel, a carpenter disagreed with his foreman about the safety procedures for measuring the amount of radioactive contamination of the carpentry tools, which was then raised with the foreman's supervisor.  In finding that this constituted protected activity, the 11th Circuit noted that he "did not merely make general inquiries regarding safety but, rather, he raised particular, repeated concerns about safety procedures for handling contaminated tools.  The 11th Circuit also stated that "Section 5851does not protect every act that an employee commits under the auspices of safety," and that "whistleblowing must occur through prescribed channels."

Sanders attempted to argue that his conduct was similar to the carpenter in Bechtel, to which the 9th Circuit disagreed, in a manner the dissenting judge addressed.  The 9th Circuit stated that, unlike the carpenter in Bechtel, Sanders had no independent knowledge of possible safety violations prior to the creation of the internal condition reports at issue, Sanders did not generate these condition reports, and Energy Northwest was already aware of the potential safety violations, and its internal process for remediation was underway.  The Court also noted that there was no suggestion in the record that because these condition were reports were designated a certain way that they would not be remedied in due course, nor was there any suggestion of any safety concern that was overlooked, neglected, or concealed by management.  Thus, the 9th Circuit concluded, "[u]nder these facts, Sanders' single expression of a difference of opinion about the "Charlie" designation of one existing internal condition report lacks a sufficient nexus to a concrete, ongoing safety concern."

The case is David W. Sanders v. Energy Northwest, No. 14-35368 (Feb. 12, 2016).  The 9th Circuit covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington.

Tuesday, February 16, 2016

Employee Medical Records and Files: Keep Private!

Every so often I receive phone calls regarding an employer's ability--or lack thereof--to reveal an employee's medical information to other people in the workplace.  Obviously, such information is subject to a few federal laws and a recent case out of Denver highlights this subject.

The Americans with Disabilities Act (ADA)

Title I of the ADA limits employer access to medical information and an employer’s right to access personal health information is governed by the provisions of the ADA that limit an employer’s right to make disability-related inquiries and conduct medical examinations of applicants and employees. See 42 U.S.C. § 12112(d); 29 C.F.R. §§ 1630.13 and 1630.14.

From the EEOC's response letter on this topic:
Title I of the ADA limits when an employer may obtain medical information and how that information can be used at three stages: before extending a job offer, after an offer is made but before an individual starts working, and once a person is on the job. Prior to extending a job offer, an employer generally may not ask any disability-related questions and may not require medical examinations of applicants. See 29 C.F.R. §1630.13(a). After extending an offer of employment but before an individual begins work, an employer may make disability-related inquiries or require medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. Id. at §1630.14(b). This could include requesting an individual’s consent to access his personal health information. However, because the ADA prohibits an employer from withdrawing a job offer from an individual with a disability or making other discriminatory decisions based on a person’s actual or perceived medical conditions, an employer should be careful not to obtain more information than is necessary to determine whether a person can do a job, even at the post-offer stage.

Once an individual begins working, an employer may only ask disability-related questions or require medical examinations that are job related and consistent with business necessity. 29 C.F.R. at §1630.14(c). Generally, this means that an employer may only obtain medical information where it reasonably believes that an employee will be unable to perform the job or will pose a direct threat due to a medical condition. Medical information also may be obtained to determine whether an employee with a non-obvious disability is entitled to a requested reasonable accommodation or satisfies the criteria for using certain types of leave, such as leave under the Family and Medical Leave Act or under the employer’s own sick leave policy. In all of these instances, however, the information sought must be limited in scope. For example, an employer cannot ask for, or view, an employee’s complete medical record because it is likely to contain information unrelated to the need to make an employment-related decision. Of course, an employer may not obtain medical information about an employee or view an employee’s personal health information unless the employee has executed an appropriate release.
Furthermore, any information or documents relating to an employee’s medical condition “shall be collected and maintained in separate forms and in separate medical files and be treated as a confidential medical record.” 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14. According to the Equal Employment Opportunity Commission’s Technical Assistance Manual, Title I of the ADA, “an employer should not place any medical-related information in an employee’s personnel file.”  Thus, an employer takes care to place an employee's medical information and files in a separate folder and in a secure location.

Finally, the question most people wonder is what is the remedy for an employee when an employer violates this law. Depending on what circuit you reside in, you may have to show that the release of this information caused you some injury.  "Injury" could range from loss of a job to emotional distress, but with emotional distress, one will need more than a bare allegation of such, which can prove difficult.

Genetic Information Nondiscrimination Act (GINA)

GINA places additional constraints on an employer’s ability to obtain personal health information. With limited exceptions, GINA prohibits employers from requesting, requiring, or purchasing genetic information (e.g., information about an individual’s genetic tests, genetic tests of a family member, or family medical history) about job applicants and employees or their family members at any time, including during the post-offer stage of employment. 29 C.F.R. §1635.8(a)-(b).

Health Insurance Portability and Accountability Act (HIPAA) 

HIPAA also imposes privacy obligations on many employers who provide group health plans. (Employers who administer their own plans and have fewer than 50 participants don't have to comply with HIPAA's privacy rules, and employers that sponsor plans that receive only enrollment information have minimal obligations.) Under HIPAA, employers are required to protect the privacy of employees' personal health-related information by designating an in-house privacy official, adopting policies and procedures to keep this information private, and notifying employees of their privacy rights, among other things.

Perez v. Denver Fire Department City and County of Denver, 2016 U.S. Dist. LEXIS 10114 (D. Co. Jan. 26, 2016) 

In Perez, the plaintiff Perez alleges that his supervisor wrote a letter to the Assistant Chief of the Denver Fire Fighter Department requesting that he be evaluated for Post-Traumatic Stress Disorder (“PTSD”) as often times Perez would become visibly upset and have to go home from work when he was exposed to pictures reminding him of his tour of duty in the Marines.  Prior to becoming a firefighter with the City and County of Denver (the “City”), Perez served eight years active duty with the United States Marine Corps.  Perez further alleges that he had never disclosed to anyone at the City that he was being treated by the Veterans Administration for PTSD. Following a fitness-for-duty examination, which confirmed the PTSD diagnosis, Perez further alleges that his supervisor scheduled a meeting—on a day Perez was not at the fire station—to “discuss Perez having PTSD and get the opinion of other firefighters in regards to Perez having PTSD.” Perez alleges in his lawsuit, following this purported disclosure, his co-workers subjected him to harassment and a hostile work environment because of his disability.

From the Nixon Peabody press release on this case:
In the litigation, Perez alleges that the City violated the ADA when his supervisor allegedly disclosed his medical condition—which was only discovered in connection with a fitness-for-duty examination—to his co-workers. While the City denies engaging in such conduct or otherwise violating the ADA, following a motion seeking to dismiss Perez’s lawsuit, the court found that the allegations set forth in Perez’s complaint were legally sufficient to go forward into discovery.
This case is still ongoing.

Attorney Randy Enochs Interviewed on Milwaukee Public Radio Regarding Ariens Co. Refusal to Change Muslim Prayer Policy

I have written about this story on this blog in the past and was interviewed by Milwaukee Public Radio ("MPR") regarding The Council on American Islamic Relations plan to file an EEOC charge(s) against Ariens Co. for their refusal to change their prayer policy for their Muslim employees, which has since resulted in several terminations.  My interview and more on this story can be found on MPR's website here.

Wednesday, February 10, 2016

Wisconsin Court of Appeals Unemployment Appeal Case: Applicant Did Not Conceal Facts About Wages

In somewhat of a rare case from the Wisconsin Court of Appeals, the Labor and Industry Review Commission's (LIRC) decision finding that an applicant for unemployment insurance, Nikki Wallenkamp, did not conceal wages and materials facts so a to pay a concealment fee and have future benefits redacted. 


The facts are somewhat difficult to follow, so I will bullet-point them for simplicity:

  • In 2011, Wallenkamp began filing for UI benefits
  • During Week 44 of 2012 through Week 3 of 2013 (November 2012-January 2013), Wallenkamp worked at Arby's
  • During two of the weeks Wallenkamp worked at Arby's, she also worked for Rocky Rococo's
  • Wallenkamp quit her job at Rocky Rococo's on December 1, 2012
  • Wallenkamp stopped working for Arby's on January 16, 2013 (Week 3 of 2013)
  • Arby's paid Wallenkamp for unused vacation time for the Week 4 of 2013
  • Wallenkamp then filed weekly claim certifications for UI benefits for the time period between Week 44 of 2012 and Week 4 of 2013 using the DWD's automated telephone claim filing system
  • The 4th question of the automated system asked: "During the week, did you work or did you receive or will receive sick pay, bonus pay or commission?"  Wallenkamp answered: "no"
To sum up the above facts, it is undisputed that Wallenkamp did work during the time period at issue, except during Week 4 of 2013.  Thus, the issue then was whether Wallenkamp concealed facts about her wages and employment status, with intent, while seeking UI benefits. 

The DWD conducted an investigation and determined that Wallenkamp was ineligible for benefits during the time period at issue, resulting in an overpayment of $1880.  The DWD also determined that Wallenkamp wa required to repay the overpayment, along with a concealment penalty of $282.  The DWD also found that Wallenkamp's concealment of wages and materials facts subjected her to a redaction of future benefits in the amount of $5264.  Wallenkamp subsequently appealed this decision and it went to a hearing before an Administrative Law Judge (ALJ).

At Wallenkamp's appeal hearing, she testified that she believed she correctly reported her employment and wages on her claim certifications.  When confronted with her responses to question 4, the ALJ told Wallenkamp that her answer "does not make any sense at all."  Wallenkamp further revealed that she was learning disabled and was confused by the discrepancy.  The ALJ then confirmed the DWD's determinations.  Wallenkamp then appealed to LIRC.

LIRC found that Wallenkamp incorrectly answered question 4 because she worked during the time period in question, did not report that she quit her employment with Rocky Rococo's in Week 48 of 2012, and did not report that she received vacation pay from Arby's in week 4 of 2013.  LIRC also noted, to the benefit of Wallenkamp, that, prior to week 43 of 2012, question 4 of the weekly claim certification simply asked, "Did you work?"  Beginning in week 43 of 2012, question 4 was modified to ask: "During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?"  LIRC determined that the modified question was "more susceptible to misinterpretation"; thus, Wallenkamp's incorrect answers were not sufficient evidence of an intent to conceal wages.

LIRC also found, contrary to the DWD and the ALJ, that Wallenkamp's testimony at her unemployment appeal hearing rebutted any presumption that she intended to defraud the DWD.  LIRC found that Wallenkamp:

(1)  credibly testified that she was confused by question 4; (2) was surprised when the ALJ informed her that she answered incorrectly; and (3) genuinely did not understand how to properly file her claims. 

Thus, LIRC upheld the DWD's requirement that Wallenkamp repay the $1880 overpayment, but reversed the portion of the DWD's order requiring Wallenkamp to pay a concealment fee and redacting her future benefits.  The DWD appealed this decision to circuit court and the circuit court affirmed LIRC, as did the Court of Appeals.

The case is WI Dept. of Workforce Development v. WI Labor and Industry Review Commission,
Docket: 2015AP000716     2016-02-02

Wednesday, February 3, 2016

January 2016 Edition of the Employment Law Blog Carnival is Live!

Attorney Robin Shea was the host of the first Employment Law Blog Carnival post of the new year!  Check it out here.