In the wake of the U.S. Supreme Court’s decision in Young v. UPS,  the EEOC has modified those aspects of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”) that deal with disparate treatment and light duty.
Under the prior guidance, issued in 2014, the EEOC asserted that a pregnant worker could prove a violation of the Pregnancy Discrimination Act (“PDA”) simply by showing that she was “treated differently than a non-pregnant worker similar in his/her ability or inability to work.” The 2014 guidance also took the position that an employer could not refuse to offer a pregnant worker an accommodation by relying on a policy that provides light duty only to workers injured on the job. The Supreme Court, however, was highly critical of and rejected this interpretation of the PDA, finding that it would require employers who provide a single worker with an accommodation to provide similar accommodations to all pregnant workers, irrespective of other criteria.
Thus, in the Guidance the EEOC deleted that language and an entire section that discussed its interpretation of “Persons Similar in Their Ability or Inability to Work.” The EEOC has updated its discussions about disparate treatment and light duty work assignments for pregnant workers by adopting the Supreme Court’s holding that a plaintiff may establish a prima facie case of pregnancy discrimination by following the McDonnell Douglas burden-shifting framework (i.e., by showing that she is pregnant, that she sought accommodation which was not granted, and that the employer accommodated others similar in their ability or inability to work). Further, a plaintiff may show that the legitimate, non-discriminatory reasons for the employer’s actions – even if supported by a facially neutral policy – were pretextual by showing the employer’s policies caused a “significant burden” on pregnant workers without reasons that were “sufficiently strong to justify the burden.”
To illustrate, the Guidance states that a practice of providing light duty to a large percentage of non-pregnant employees, while failing or refusing to provide light duty to a large percentage of pregnant workers, might demonstrate that the policy significantly burdens pregnant employees. The Guidance, however, fails to specify what it considers a “large percentage,” and provides no detail or examples as to what reasons might be sufficiently strong to justify such a burden.
This is the second time in two years that the EEOC has updated its enforcement guidance in this area. Last year, the EEOC revamped the Guidance to provide an overview of coverage under the PDA, to address the impact of the inclusion of pregnancy-related impairments under the Americans with Disabilities Amendments Act of 2008, and to address other benefits that must be provided to pregnant workers. These aspects of the Guidance remain unchanged.
Employers should take note of the EEOC’s increased scrutiny of facially neutral policies that may impose significant burdens on pregnant workers. The EEOC’s current Strategic Enforcement Plan identifies the accommodation of pregnancy-related limitations as an emerging issue that will be prioritized, and the updated Guidance on this subject is evidence of the agency’s focus in this area.
 Young v. UPS, 135 S. Ct. 1338 (2015).
My colleague Laura A. Stutz at Epstein Becker Green has a Retail Labor and Employment Law blog post that will be of interest to employers doing business in New York City: “New York City Investigation of Hiring Practices:.
Following is an excerpt:
New York City’s Commission on Human Rights is now authorized to investigate employers in the Big Apple to search for discriminatory practices during the hiring process. This authority stems from a law signed into effect by Mayor de Blasio that established an employment discrimination testing and investigation program. The program is designed to determine if employers are using illegal bias during the employment application process.
Read the full original post here.
My colleagues Michael S. Kun and Jeffrey H. Ruzal at Epstein Becker Green wrote a Wage and Hour Defense blog post that will be of interest to all financial services employers: “Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay.”
Following is an excerpt:
More than a year after its efforts were first announced, the U.S. Department of Labor (“DOL”) has finally announced its proposed new rule pertaining to overtime. And that rule, if implemented, will result in a great many “white collar” employees previously treated as exempt becoming eligible for overtime pay for work performed beyond 40 hours in a workweek – or receiving salary increases in order that their exempt status will continue.
Read the full original post here.
On Monday, June 29, 2015, Mayor Bill de Blasio signed into law the bill passed by the New York City Council “banning-the-box.” The law goes into effect on Tuesday, October 27, 2015. As discussed in our earlier advisory, the ban-the-box movement removes from an employment application the “box” that requests criminal conviction history. New York City’s law also imposes additional requirements upon the employer when making an adverse employment decision on the basis of criminal conviction history.
It is important for financial services employers to remember that the National Labor Relations Act protects their employees even when those employees are non-union, and that when groups of employees engage in discussions about their terms and conditions of employment via the employer’s email system, that conduct may constitute protected activity for which the employees may not be punished. A recent example is highlighted by my colleague Nancy L. Gunzenhauser at Epstein Becker Green in a Management Memo blog post: “NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity. ”
Following is an excerpt:
While we have been reminding readers of the fact that the National Labor Relations Act (the “Act”) protects employees regardless of whether they are represented by a union and the Act applies to non-unionized workforces, too, recently a National Labor Relations Board (the “NLRB”) Administrative Law Judge issued a decision following an unfair labor practice (“ULP”) hearing based on a charge filed by a teacher at New York City’s prestigious Dalton School that should serve as an object lesson for employers in all non-union businesses.
Read the full original post here.
In its May 28th, 2015 decision in Rhinehimer v. U.S. Bancorp Investments, Inc. (pdf), the Sixth Circuit Court of Appeals ruled that an employee who reports alleged unlawful conduct has engaged in protected activity for the purposes of a retaliation claim under the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, as long as he or she has an objectively reasonable belief that the activity reported is prohibited under SOX. The Sixth Circuit has joined the Second and Third Circuit Courts of Appeal in rejecting the previously adopted standard that an employee’s conduct must “definitively and specifically” relate to one of the enumerated categories of fraud by approximating the basic elements of the fraud claim. The issue has not yet been revisited in the First, Fourth, Fifth, and Ninth Circuits since the Administrative Review Board rejected the “definitively and specifically” standard in Sylvester v. Parexel Int’l LLC, ARB Case No. 07-123 (May 25, 2011).
Rhinehimer was a certified financial planner at U.S. Bancorp who was terminated after he complained to his supervisor about questionable trades made by a coworker to the detriment of his elderly client – trades Rhinehimer claimed constituted unsuitability fraud. He alleged that his termination constituted unlawful whistleblower retaliation in violation of SOX, which makes it illegal for companies to retaliate against an employee who reports alleged fraudulent activity. Rhinehimer obtained a verdict at trial and U.S. Bancorp appealed. On appeal, the Sixth Circuit was asked to determine whether a jury could reasonably find that Rhinehimer engaged in protected activity under SOX.
SOX requires that an employee reasonably believe that the activity reported is prohibited by law. The defendants argued that Rhinehimer did not have a reasonable belief because he did not meet the “definitively and specifically” standard, which requires an employee to justifiably believe that each of the legally-defined elements of the suspected fraud occurred. Acknowledging decisions by other Courts of Appeals, including the Second and Third Circuit Courts, the Sixth Circuit similarly rejected the “definitively and specifically” standard, finding that such an interpretation is inconsistent with the purpose of SOX, which was designed to provide broad protection for employees who provide information regarding “any” conduct reasonably believed to constitute a violation of relevant law. Instead, the Sixth Circuit held that a plaintiff need only have a reasonable belief, based on the totality of the circumstances of the case, that the conduct complained of was prohibited under SOX. Ultimately, the Court held that a person in Rhinehimer’s position met this standard.
The trend is plainly in favor of rejecting the “definitively and specifically” standard of determining protected activity, but employers can still prevail by demonstrating that an employee lacked reasonable belief – a fact-specific inquiry that requires a showing of both subjective belief and objective reasonableness.
The authors gratefully acknowledge the assistance of summer associate Judah Rosenblatt in the preparation of this post.
My colleague Joshua A. Stein at Epstein Becker Green has a Hospitality Labor and Employment Law blog post that will be of interest to many of our readers: “DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations.”
Following is an excerpt:
For those who have been eagerly anticipating the release of the U.S. Department of Justice’s proposed website accessibility regulations for public accommodations under Title III of the ADA (the “Public Accommodation Website Regulations”), the wait just got even longer. The recently released Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions reveals that DOJ’s Public Accommodation Website Regulations are now not expected until April 2016. This delay moves back the release date nearly a year from what most had previously anticipated; this summer in advance of July’s 25th Anniversary of the ADA. While there was no public statement explaining the release, most insiders believe it has to do with the difficulty of appropriately quantifying the costs and benefits of complying with any promulgated regulations – a necessary step by DOJ for such a rulemaking.
Read the full original post here.
The number of whistleblower complaints is on the rise, according to the 2014 Annual Report to Congress on the Dodd-Frank Whistleblower Program, and defending against them can be costly and disrupt business operations. Taking appropriate steps in response to internal complaints can go a long way toward minimizing the risk that the issue becomes an external dispute at OSHA or in court.
Understanding the Objectives A prompt investigation and an understanding of the objectives of the investigation are paramount. Employers should decide, for example, whether the goal is to create a factual record, prepare an investigative report addressing a particular inquiry or legal consideration, provide a basis for decision making, or serve as a defense in anticipated litigation—or any combination of these objectives. These considerations will determine whether the investigation should be undertaken by a non-attorney or by corporate counsel or outside counsel, or both. For example, if the goal is simply to correct a problem internally, perhaps corporate counsel is appropriate. If, on the other hand, there is a high likelihood that the employee’s complaint will lead to full-blown litigation, outside counsel may be more appropriate. In addition, employers must have a basic understanding of the privileges afforded to attorney work product and attorney-client communications. This is because the choice of investigator can impact whether, and to what extent, these privileges apply to the information adduced during the investigation, which, in turn, will determine whether such information will be protected from disclosure to third parties.
Whistleblowers in Compliance or Audit Functions Employers should also know how to respond to the challenge raised by complaints made by whistleblowers who work in compliance or audit functions or are otherwise responsible for receiving and investigating internal whistleblower complaints. These “trusted” whistleblowers are especially problematic because, while they should be working to investigate and correct the issue internally, they may also decide to blow the whistle themselves and report the matter to outside authorities. Further, while they are generally ineligible for financial awards under the Dodd-Frank whistleblower bounty program, these “trusted” whistleblowers can become eligible for an award if the business takes no corrective action within 120 days after they make an internal complaint. They are also protected by anti-retaliation provisions of Dodd-Frank and SOX.
Training Managers to Receive Complaints One of the most important considerations is making sure that supervisors and managers are trained and understand how to recognize and elevate a whistleblower complaint to the appropriate internal legal or compliance unit, and how to conduct themselves going forward to minimize the risk of a retaliation claim by an employee who blows the whistle. Issues are frequently first raised at the supervisory level, and the sooner that compliance and/or legal professionals receive information about a claim so that they can access the appropriate response, the sooner an internal investigation can commence, when necessary. Further, managing an employee who has made a whistleblower claim can present a host of challenges, particularly if the employee is under-performing and therefore has been or is becoming a candidate for corrective or even disciplinary action. If a current employee raises a whistleblower complaint, it is essential that the alleged wrongdoing is not compounded by retaliation against that employee (or by actions that give the appearance of retaliation). Thus, supervisors and managers should receive periodic training regarding the laws and company policies prohibiting retaliation. They should also understand the need to have any potentially adverse employment actions vetted by the legal department before taking action. Finally, supervisors and managers should be given appropriate support from the legal and/or human resources departments in terms of counseling and advice in dealing with the whistleblower on a day-to-day basis as issues arise, rather than trying to navigate these waters on their own.
On May 5, 2015, the Eleventh Circuit Court of Appeals ruled in Wiersum v. U.S. Bank, N.A. (pdf) that the National Bank Act (“NBA”), 12 U.S.C. §24 (Fifth), preempted a bank officer’s state law whistleblower claim that he was wrongfully terminated for opposing the bank’s alleged unlawful conduct. This was a first-impression issue for the Eleventh Circuit, and the majority concluded that the state law claim was preempted because it directly conflicted with the power Congress vested in federally chartered banks to dismiss officers “at pleasure.”
Wiersum, a former Vice President and Wealth Management Consultant for U.S. Bank, claimed that the bank had wrongfully terminated him in retaliation for complaining about, and refusing to participate in, the bank’s alleged unlawful practice of conditioning credit upon asset management (i.e., illegal tying arrangements). He alleged that his termination violated the Florida Whistleblower Act (“FWA”), which prohibits an employer from taking adverse personnel action against an employee because he or she objected to an activity of the employer that violates a law, rule, or regulation. The Eleventh Circuit, however, ruled that Wiersum’s claim was preempted by the NBA, which permits the board of directors of a national banking association to appoint officers, define their duties, and “dismiss such officers or any of them at pleasure.”
The Court analyzed the dispute as a question of conflict preemption – i.e., where state law is preempted because it conflicts with federal law such that a party cannot comply with both state and federal requirements, or conflicts with the objectives of Congress in enacting applicable federal regulations. The majority of the Court concluded that in this case the state law (FWA) conflicted with applicable federal law (NBA): on the one hand, the FWA would prohibit U.S. Bank from terminating an officer for objecting to alleged unlawful activities, while, on the other hand, the NBA grants U.S. Bank the full discretion to terminate an officer at will. Relying on decisions from the Fourth and Sixth Circuits that recognized the NBA’s preemptive power over state laws that divest a national bank of the right to terminate officers at pleasure, the majority held that the state whistleblower claim was in direct conflict with, and therefore barred by, the NBA’s at-pleasure provision.
In a dissenting opinion, Hon. Beverly Martin argued that the historical underpinnings of the at-pleasure provision demonstrate that it was not intended to preempt state whistleblower law, and that the Fourth and Sixth Circuit decisions the majority relied upon have “very little supporting their broadly preemptive interpretation of the NBA” and have been criticized by other federal courts. Judge Martin wrote that the consequences of the majority ruling are “worrying” because it denies bank officers protections afforded by state and local anti-retaliation laws.
The majority was unswayed, calling this a “straightforward case of conflict preemption” and finding the dissent’s concerns unfounded because bank officers would continue to be protected by federal laws that prohibit unlawful whistleblower retaliation (e.g., Dodd-Frank). The majority decision confirms the power afforded to national banks to dismiss officers “at pleasure” – at least for the time being in the Eleventh Circuit. Yet, for the reasons articulated in the dissent, the extent to which national banks can rely on the NBA’s “at pleasure” provision as a defense to whistleblower claims brought pursuant to state and local laws may be less certain unless and until the issue is squarely addressed by the U.S. Supreme Court.