Document and Communicate with Employees about Performance Deficiencies

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For multiple reasons, it is imperative that employers document and communicate performance deficiencies with the employee and keep written documentation in the employee’s personnel file. The write-up and counseling should occur at the time the deficiency occurs not at the annual review.

This written documentation and communication with the employee is important to defend against litigation. First, if the employee files an employment discrimination claim, the record of performance deficiency and the employee’s knowledge of the issues illustrate a legitimate, non-discriminatory reason for termination. Second, it may save the employer from paying unemployment benefits. The documented performance problems may illustrate misconduct, which will exclude the employee from receiving unemployment. If the employee were to receive unemployment benefits, they would be charged to the employer’s unemployment account.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Actual Notice Needed for Employees to be Bound to Arbitration

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The fact that two terminated employees signed an acknowledgement of an arbitration agreement is not enough to force the employees to arbitrate their employment discrimination complaints.

Jonathan Collier and Robert McQuen admitted that they signed forms acknowledging their receipt of and promise to be bound by their employer’s arbitration agreement; however, they deny ever receiving the arbitration agreement itself. The failure to receive the actual agreement was fatal in this case.

The court in Collier v. RD America, LLC, held that “without actual notice of the contract’s terms, the contract lacked mutual assent and is not valid and enforceable.”

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Federal Judge Blocks New Overtime Pay Plan

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On November 22, 2016, just 10 days before the implementation date, a federal judge in Texas halted the Department of Labor’s (DOL’s) new federal overtime rule under the Fair Labor Standards Act. The overtime rule was scheduled to take effect Dec. 1 and would have raised the salary threshold from $23,660 to $47,476. The rule also provided for adjustments every three (3) years.

Twenty-one states had filed an emergency motion for a preliminary injunction in October to halt the rule. They claimed that the DOL exceeded its authority by raising the salary threshold too high and by providing for automatic adjustments to the threshold every three years. The injunction signed by the judge keeps the existing rule salary threshold in place until a final decision in the case is reached.

So, for now, until a final decision in the case is reached, employers may continue to follow the existing overtime rule, which keeps the salary threshold at $23,660.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

NC Court of Appeals Holds that Public Employers Must Follow Their Written Employment Policies

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North Carolina Court of Appeals recently ruled that a police officer has a valid property and liberty interest in requiring his employer to comply with its own written promotional process.

Corporal Kevin Tully worked for the Wilmington Police Department. In 2011 he took a written test for promotion and felt confident that he had answered most of the questions correctly. After the fact he realized that many of the answers on the answer key were wrong and he appealed the denial of his promotion. He utilized the internal grievance procedure. The directive in the policy manual stated that candidates may appeal any portion of the selection process through the internal grievance procedure.

After Corporal Tully grieved his denial of promotion due to incorrect test answers, the Wilmington City Manager informed him that his grievance was denied as to the promotion because “test answers” were not grievable. The Grievance Review Board upheld the denial of the grievance.

Corporal Tully ultimately filed a lawsuit arguing that the North Carolina Constitution as well as the city’s own policy directives guaranteed his right to an equal employment opportunity. Further, he alleged that his due process rights under the North Carolina Equal Protection Clause and the “fruits of his own labor” clause were denied. The trial court denied the lawsuit and dismissed it in favor of the city.

However, the North Carolina Court of Appeals reversed the trial court and held that Corporal Tully had alleged a valid property and liberty interest in requiring the city to comply with its own promotional process. This holding appearance to be a decision of first impression in North Carolina.

Because there was a dissenting opinion, it is likely that Wilmington will appeal the decision to the North Carolina Supreme Court, so stay tuned. Otherwise, at this time this decision is a cautionary tale for government employers, especially counties and municipalities, who have a written employment policy and then do not follow their own policy.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Federal Court Rules Dreadlock Ban During Hiring is Legal

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The 11th U.S. Circuit Court of Appeals has ruled against the Equal Employment Opportunity Commission, holding that that refusing to hire someone because of their dreadlocks is okay.

The lawsuit was filed by the EEOC on behalf of Chastity Jones. Her job offer was rescinded by Catastrophe Management Solutions, located in Mobile, Alabama, when she refused to change her hairstyle to remove her dreadlocks.

In the lawsuit, the EEOC claimed that this was a violation of the Civil Rights Act of 1964’s Title VII, arguing that dreadlocks are a “racial characteristic” that have been historically used to stereotype African-Americans. Therefore, claiming that dreadlocks do not fit a grooming policy is based on these stereotypes and inherently discriminatory, as dreadlocks are a hairstyle “physiologically and culturally associated” with African-Americans.

The court disagreed stating that the “race-neutral grooming policy” was not discriminatory as hairstyles, while “culturally associated with race,” are not “immutable physical characteristics.” In essence, traits in a person’s appearance that are tied to their culture but are otherwise changeable are not protected and can be used to deny job offers.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

EEOC and Retaliation Claims

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On August 29, 2016, the EEOC issued Enforcement Guidance on Retaliation. With that guidance it issued a fact sheet for small businesses about retaliation. At its most general, retaliation is when an employee reports discrimination in any way, and the employer takes an adverse action as a result of the report. The retaliatory action enables the employee to file another complaint or charge for discrimination. It does not matter if the initial complaint is meritorious.

The link to the fact sheet is as follows:

https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm

The take away from this guidance is highlighted as follows:

Retaliation is punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment.  The following are actions employees have the right to take to oppose discrimination. These are examples provided by the EEOC. The list is not all inclusive:

  1. Participate in an EEO investigation, including filing an external EEOC charge or filing an internal complaint with the company;
  2. Being a witness in a EEOC charge, complaint or lawsuit alleging discrimination;
  3. Communicating with a manager or supervisor about employment discrimination, including harassment;
  4. Refusing to follow orders that would result in discrimination;
  5. Resisting sexual advances or intervening to assist others;
  6. Reporting discrimination or harassment to a supervisor; or
  7. Requesting a disability or religious accommodation.
  • An employer cannot refuse to hire an applicant because of an EEOC charge against a prior employee. That is also retaliation.
  • Employers certainly can discipline employees for employment-related deficiencies who are involved in a discrimination complaint or EEOC charge. The job deficiencies should be clearly documented in writing by the employer. The employer should evaluate any discipline to insure it is job-related and not motivated by the fact the employee filed a charge or complaint.
  • Even if employer never takes official employment action against the complaining employee, there are other actions which can be viewed as retaliatory such as reprimanding an employee near in time for filing a charge, giving a lower than usual performance evaluation, transfer of the employee to less desirable position, or increased scrutiny of the employee. If the employer takes any of these actions, there must be a job-related reason for these employer actions.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

New Charge Handling Procedures from the EEOC

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EEOC has implemented new office procedures for submission and release of position statements:

  1. They are asking that employers provide relevant evidence and information supporting the employer’s position in attachments;
  2. They are asking that confidential information, such as personally identifiable information, sensitive medical information, or confidential financial information is segregated in attachments;
  3. They ask that employers use the digital charge system to upload position statements and attachments within thirty (30) days of receiving the charge. The mediation option, if offered, can also be chosen using the digital system. The representative’s name can also be provided to the EEOC through the digital system;
  4. It appears that the EEOC will provide the position statement and non-confidential attachments to the charging parties request the information; and
  5. The charging party’s response will not be shared with the employer.

See the EEOC website for additional details.  For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Understanding the Alphabet Soup of Employment Law

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Employment law is the alphabet soup of state and federal law:  ADEA, ADAAA, EPA, FMLA, REDA, NCEEPA, Title VII, and the list continues.  To learn more, sign up for a course that will give a brief overview of protections of various state and federal employment laws including best practices for employers and employees under the law. Please visit the ECU Lifelong Learning Program website if you are 50 years or older to register for this class offered on November 16th.

For questions about employment law and other civil litigation issues, please contact Tracy Stroud at 252-321-2020.

 

Final EEOC Regulations Map Out ADA, GINA compliance for employer wellness programs

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In May 2016, the EEOC released two final rules mapping out how employers may offer inducements and incentives for participation in wellness programs without being in violation of the Americans’ with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).

The final ADA rule provides that wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives up to 30 percent of the total cost of self-only coverage.

The final GINA rule provides that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive for the employee.  No incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Title VII Prevailing Party and Award of Attorneys’ Fees

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In Title VII employment discrimination cases, the statute allows award of attorneys’ fees to the prevailing party in the case. In a case interpreting that provision of the statute, the U.S. Supreme Court held that a defendant does not have to obtain a favorable judgment on the merits in order to be a prevailing party.  For more information, see CRST Van Expedited, Inc. v. EEOC, May 19, 2016.

For more information on changes in employment law, contact Tracy Stroud at 252-321-2020.