BizLawBuz …. The Power of Know

Statistics from the Equal Employment Opportunity Commission (”EEOC”) confirm what many of us lawyers defending businesses already knew: the number of discrimination charges filed against employers continues to grow each year. In the current economic climate, employers are more vulnerable than ever as terminated employees look for any recourse that might soften the economic blow of losing a job.

Before pursuing a lawsuit under state or federal anti-discrimination laws, employees must first pursue administrative relief with the State Department of Civil Rights or the EEOC. Once a claim or “charge” is filed, the employer will be notified and given the opportunity to file a written response. An investigation then ensues, which results in a written determination on whether discrimination occurred.

Many employers fail to appreciate the potential implications of a poorly handled EEOC investigation. They tend to process the initial request for information and response in the same way they might handle an application for unemployment or worker’s compensation benefits. Consequently, the response is often relegated to, and drafted by, a bookkeeper or office manager who lacks training in this area. Not infrequently, the same manager who mishandled the termination process in the first place is assigned the job of addressing the EEOC charge.

This lack of attention can needlessly extend what should be a straightforward investigation. Worse, it may generate a paper trail of careless, potentially harmful statements that will be attributed to the employer if the employee ultimately files a lawsuit. Worse still, a poorly handled investigation may convince the EEOC that discrimination did occur and that the EEOC should step in itself to bring a lawsuit against the employer on the employee’s behalf. What started as an irritating bit of “paperwork” has become a two-headed monster well beyond the employer’s ability to control.

Now more than ever, it is imperative that employers be cautious, informed and proactive when dealing with employee discipline and termination. Seek counsel before you act. And if you do receive notice that a charge of discrimination has been filed, give it undivided and immediate attention. If you fail to do so, it most certainly will demand that much more time and attention in the days and weeks to come.

Dirk A. Beamer

The Equal Employment Opportunity Commission (EEOC) enforces most employment related civil rights laws including Title VII, the Americans with Disabilities Act (ADA) and the Age Discrimination and Employment Act (ADEA). Given the ailing economy and increased job cutbacks, the EEOC expects discrimination claims to rise.

On July 15, 2009, the EEOC issued a written guidance intended to help both employers and employees understand what it looks for when deciding whether to challenge the validity of waivers and releases of claims by former employees. The EEOC guidance points out key issues to watch.

First, regardless of the type of discrimination claim, the guidance reminds employers and employees that a waiver will not be enforced if it was not knowingly and voluntarily given. Thus, it is crucial that employees understand that they have the right to refuse to sign the waiver. For this reason, it is equally important that employees be receiving some tangible, additional benefit (typically severance pay) when signing the waiver that is over and above what they would otherwise receive at termination. The release document must make it clear that the release is part of what is being given by the employee in return for severance pay.

Second, because the waiver must be knowing and voluntary, the EEOC will look much more carefully at situations where employees were not encouraged to consult with an attorney. Employers should never engage in “strong-arm” tactics such as insisting that a release be signed immediately.

Third, employers need to understand that – while an employee may be asked to surrender the right to sue and the right to recover damages – a release will not be effective if it tries to prohibit a discharged employee from filing an age discrimination charge with the EEOC. In our practice, we recommend releases that state expressly that the employee retains the right to file an administrative charge but also make clear that the employee cannot expect to profit personally by doing so.

Whether discharging a single employee or administering a group layoff, employers should always look for opportunities to obtain knowing and voluntary waivers of claims by the terminated employees. Given the benefits a valid release provides and the liability risks if the release is not enforceable, employers should always take the time to ensure that each release is tailored to meet the needs of the particular circumstances presented.

Dirk A. Beamer

When screening job applicants, employers routinely inquire about an applicant’s criminal record. While such inquiries are permissible, an across the board policy against hiring people with criminal convictions may not be.

Data shows that certain minority groups are disproportionately represented among the ranks of people with criminal convictions. Accordingly, a blanket policy against hiring people with convictions is statistically more likely to discourage hiring among those minority groups. Because of the “disparate impact” these policies can have on minority groups, they are coming under fire from the United States Equal Employment Opportunity Commission (“EEOC”).

Speaking at a recent meeting of the Labor and Employment Law Section of the State Bar of Michigan, the regional field director for the Detroit office of the EEOC announced plans to challenge employers with blanket policies against hiring applicants with criminal records. The Detroit office of the EEOC has already commenced litigation in federal court in Grand Rapids against a retail chain that follows such a policy.

Employers will be wise to review their own policies and hiring practices. Decisions based on criminal history should be made on a case-by-case basis and only where there is a rational, specific correlation between a criminal conviction and the applicant’s ability to perform the job at issue. For example, someone convicted of embezzling funds can safely be ruled out as an applicant for a cashier’s position. Someone with a fifteen-year-old conviction for drunk driving cannot be as easily eliminated from consideration for that same cashier’s position.

One option for passing the EEOC’s scrutiny is to make a job offer provisional pending a criminal background check. By delaying the inquiry into the criminal history until after an applicant has been found otherwise qualified for the job, the employer minimizes the risk of being found to have used criminal history as an excuse for eliminating qualified applicants based on race.