We are excited to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Negotiations Services practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.
Over the past several years, mainstream media has become increasingly fixated on issues of sexual violence on college campuses, with major state universities like the University of Montana, Michigan State University, the University of Virginia (UVA), and the University of California at San Diego receiving the brunt of the attention and corresponding criticism. The general consensus: educational institutions are not doing enough to ensure that students have safe and nondiscriminatory learning environments. The federal government, through the U.S. Department of Education’s Office for Civil Rights (OCR), seems to agree.
Last week, the spotlight was refocused on the University of Virginia (“UVA” or “University”) when the OCR announced that it had entered into a resolution agreement with UVA to ensure that the University complies with requirements of Title IX of the Education Amendments of 1972 (“Title IX”), which prohibits discrimination on the basis of sex in education programs and activities operated by recipients of Federal financial aid. The resolution agreement came to fruition after an OCR investigation determined that between 2008 and 2014, UVA had a “mixed record” of Title IX compliance.
UVA’s policies and practices regarding sexual violence and harassment became a mainstream media topic of contention earlier this year when Rolling Stone Magazine (“Rolling Stone”) published an article, ‘A Rape on Campus’ regarding a student’s alleged sexual assault by members of a fraternity. However, after several media outlets brought attention to several inaccuracies and journalistic failures contained in the narrative and Rolling Stone commissioned the Columbia University School of Journalism to conduct an independent review of the narrative’s accuracy, Rolling Stone issued a retraction, which we previously reported on in April. Despite the OCR investigation becoming “newsworthy” as a result of the Rolling Stone article and subsequent fallout, the OCR in fact began its Title IX investigation in June 2011, long before the topic drew national debate.
On September 21, 2015, OCR issued a Letter of Finding, determining that UVA violated Title IX because:
- The University’s Sexual Misconduct Policy (SMP) failed to provide a “reasonably prompt timeframe for the major stages of the complaint process” including a timeframe for completing an investigation, initiating a hearing, and resolving appeals.
- The University’s informal resolution process was structurally flawed and inequitable because if, during the course of the informal resolution process, the accused admitted to wrongdoing, the University would proceed with sanction recommendations without first conducting an independent investigation into the complainant’s allegations. Such a process was inequitable as to both the alleged victim and perpetrator because it allowed for the “imposition of sanctions that the University has not determined to have occurred.”
- On at least two occasions during the formal resolution process, the University failed to provide for prompt and equitable resolution when it, among other things: (1) took five months to schedule a hearing after completion of an investigation in a particular case and (2) allowed a student accused of sexual assault to file a late cross-claim against the complainant without conducting an independent investigation into the accused’s allegations and without giving the original complainant adequate time to prepare to defend against the cross-complaint. The University’s decision to allow the accused to file a late cross-claim that would be addressed at the already scheduled hearing without a separate investigation in the validity of the cross-claim was inequitable.
- The University implemented a practice by which the Associate Dean of Students served both as the Deputy Title IX Coordinator for Student Sexual Misconduct and as the Chair of the Sexual Misconduct Board (SMB). These dual roles created the appearance of a conflict of interest because the Deputy Title IX Coordinator was responsible for receiving complaints, implementing interim measures and selecting the SMB panel for the hearing, but as the Chair was responsible for facilitating the hearing, guiding the panel in its questioning of witnesses, and issuing the first draft of the panel’s decision.
- The University relied too heavily on the parties to identify relevant evidence by requiring the parties to submit a list of witnesses and relevant evidence they wished to present at hearing. Under Title IX, UVA had the responsibility to make an informed and independent judgment of what evidence the SMB panel needed to use in adjudicating the complaint. By relying on the parties’ evidence and witness list without independently determining what evidence was necessary to make an informed decision, this process undercut the SMB’s ability to meet its responsibility to conduct an adequate, reliable, and impartial investigation and determination.
- The University failed to take appropriate action in 22 of 50 reports made by students between 2008 and 2012. In nine reports, there were no records that UVA ever conducted investigations. An additional four were referred to local police, but were not independently investigated by the University. The other nine reports were made by complainants requesting confidentiality or that no investigations occur, but UVA appeared to make no effort to even evaluate such requests “in the context of its responsibility to provide a safe and nondiscriminatory environment for all students.” (In the words of OCR.) OCR noted that between 2012 and 2014, the University continually failed to evaluate its responsibility to provide a safe and nondiscriminatory environment when evaluating confidentiality requests.
- The Title IX Coordinator did not adequately coordinate and oversee all Title IX complaints. For example, in practice, complaints were handled within academic departments by department staff who were not properly trained. Department staff often failed to report complaints to the Director of Equal Opportunity Program (EOP), who also served as the Title IX Coordinator. Furthermore, even when reported to EOP, the Director of EOP had only limited involvement and oversight over the departments’ responses to student complaints.
- The University did not include a compliant notice of nondiscrimination in locations other than the EOP website. This nondiscrimination notice was only directed to employees and failed to address how the University’s policies regarding nondiscrimination applied to students in the University’s broader programs and activities.
Ultimately, OCR determined that UVA actions, or inactions, created a sexually hostile environment when it failed to take prompt and equitable action in responding to formal and informal complaints and reports and when it neglected to assess whether a hostile environment existed or take steps to prevent its reoccurrence. As a result of OCR’s findings, on September 17, 2015, UVA and OCR entered into a Resolution Agreement whereby UVA agreed to, among other provisions:
- Continue to follow its revised Title IX grievance procedure, which the OCR has deemed to be fully compliant;
- Ensure that agreements with student organizations clearly state that sexual harassment, sexual violence, and retaliation are prohibited and that the organizations are required to comply with the University’s Title IX policies;
- Regularly train students, faculty, administrators and other staff on issues related to sexual harassment and violence, including University policies and procedures;
- Widely disseminate its notice of nondiscrimination;
- Improve outreach to and feedback from students through focus groups and annual climate assessments;
- Develop and implement a system for tracking and reviewing all reports, investigations, interim measures, and resolutions;
- Review all complaints from the 2011-12; 2012-13, and 2013-14 academic years to determine that each complaint was handled properly and take action to address any deficiencies; and
- Submit to OCR for review all complaints filed by students for the 2014-15 and 2015-16 academic years.
UVA shares the spotlight with other schools like Michigan State University (“MSU”), who this month also entered into a resolution agreement with OCR in response an OCR investigation revealing several Title IX violations between 2009 and 2014. Through these two investigations, as well as dozens of others not as widely publicized, the OCR has made it abundantly clear that it will prioritize ensuring that schools that receive Title IX funding do not deprive students of access to education on the basis of sex, including sexual harassment and violence. In particular, OCR is paying particular attention to school’s grievance procedures to ensure moving forward, all parties to a complaint are provided with prompt and equitable resolutions. OCR is clear that the following elements are critical to achieve Title IX compliance:
- notice to students and employees of the procedures, including where complaints may be filed;
- application of the procedures to complaints alleging discrimination and harassment that is carried out by employees, other students, or third parties;
- provision for adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and respondent to present witnesses and other evidence as part of the investigation;
- designated and reasonably prompt timeframes for the major stages of the complaint process;
- written notice to both parties (complainant and accused) of the outcome of the complaint and any appeal; and
- assurance that the recipient will take steps to prevent recurrence of any sex discrimination or harassment found to have occurred, and to correct its discriminatory effects on the complainant and others, if appropriate.
California educational institutions should remember that Title IX is not the only law that they have to worry about. Educational institutions must comply with other state and federal laws addressing harassment and violence. For instance: Institutions of higher education receiving federal funding must comply with The Clery Act regarding crime reporting; Institutions of higher education receiving state funding must comply with California’s new “Yes Means Yes” law (Educ. Code section 67386); Community College Districts must comply with Title 5 of the California Code of Regulations (Ca. Code Regs., tit. 5, section 59300 et seq.); and Mandated reporting laws may apply to all institutions, whether public or private. California’s Penal and Education Codes address additional obligations. For these reasons, while OCR deemed UVA’s Title IX grievance procedure fully compliant, and California educational institutions may look to the procedure for reference, they should remember that the grievance procedure does not take into account requirements under California law. Furthermore, it is important to note that even under federal law educational institutions may have specific institutional needs and concerns that necessitate deviations in Title IX policies to the extent permitted by law. Consulting with California legal counsel can help colleges and universities comply with applicable requirements.
It was 100 years ago, in 1915, that the founder of conceptual art Marcel Duchamp left his native France to live in New York City. He was 28 years old, alone, and dependent on friends, but a short time after his arrival he “created” works that changed art forever. His idea was to take an everyday object like a bicycle wheel, a snow shovel, or even a bathroom fixture, simply designate it as a work of art, and place it in a gallery or enter it in an art show. This approach annoyed and offended many and was dismissed by most as a prank, but his works impressed radical artistic groups at the time. Duchamp retired from the art world several years later to try to become a professional chess champion. But even when he stopped making “art,” his reputation grew with each passing decade. Fifty years later in the early 1960’s, Andy Warhol was thought to be inspired by Duchamp in creating his signature artwork: meticulous paintings of everyday commercial objects like Campbell’s soup cans.
The legacy of these types of artists today, in 2015, is the widely accepted notion among the public that art has to be shocking and novel to make any difference, and that art will benefit from clashing outrageously with applicable standards and rules.
For College and University administrators, human resources managers, and officials charged with compliance with Title IX of the Education Amendments of 1972 (“Title IX”) (20 U.S.C. section 1681 et seq.), this notion can present unique challenges. What if a student creates art as part of a classroom project that has such graphically sexual content that it generates a Title IX complaint from a fellow student? What if the art denigrates a group on the basis of gender, sexual orientation, or other protected classification, again to the point at which a fellow student complains? What if a student produces and publicizes a poem, story, or other piece of artistic expression that reveals a romantic longing for a classmate, which turns out to be very unwelcome?
The federal government, through the Department of Education’s Office for Civil Rights (“OCR”), has made clear that it will not tolerate conduct on campus that deprives students of access to an education on the basis of sex, including sexual harassment that is sufficiently severe to fall within the scope of Title IX. At the same time, Courts have vigorously applied the First Amendment to protect the free expression rights of students in public colleges and universities. Courts will readily point out that the First Amendment protection, as part of the U.S. Constitution, can override even federal laws like Title IX.
Probably the most famous recent example of this quandary is Columbia University’s having to contend with the 2014-2015 “mattress protest” by undergraduate art student Emma Sulkowicz. She claimed to have been the victim of sexual assault by a fellow student. When a College disciplinary panel declined to find that the accused student violated the College’s sexual misconduct policy, Ms. Sulkowicz began carrying with her every time she was on campus a dorm room mattress that was representative of the one on which she was allegedly assaulted. Her plan was to carry the mattress until her alleged assailant was no longer a student at the College. An art department faculty member officially approved the activity, and Columbia authorized Sulkowicz to conduct the protest for academic credit.
In declining to interfere with the mattress protest, Columbia was honoring the free expression rights of one its students, declining to intrude upon the academic freedom rights of its faculty member who approved the project, demonstrated its own willingness to accept criticism, and was host to an art project that generated controversy but also gained widespread national praise. Yet it nevertheless now faces a federal lawsuit by the exonerated student, who claims that Columbia, in allowing the mattress protest and giving academic credit for it, caused him to be defamed, and created an environment on campus for him that was so harsh that his own Title IX rights against sex discrimination were violated. A District Court Judge in the Southern District of New York will soon decide the extent to which the lawsuit will withstand a motion to dismiss.
The intersection of Title IX and student expression can present complex scenarios for colleges and universities, with considerable legal down sides. The following are some practical tips for how to address these scenarios. The first two are proactive steps that will provide system-wide benefits before situations arise.
- Insure that harassment and Title IX procedures comply with First Amendment requirements.
A review of existing procedures, including student codes of conduct, can help stop disciplinary proceedings from running afoul of free expression standards. Some colleges and universities have harassment policies and codes of conduct that – even if well-meaning – prohibit too much speech. One example is a sexual harassment policy that contains overly broad definitions of what speech it includes, for example “inappropriate” or “denigrating” language relating to sexual matters. This type of language is potentially broad enough to encompass speech that would normally not be considered harassment and that instead would traditionally be considered constitutionally protected. Another example is a “bullying” policy that, among other things, contains a prohibition on simply “offending” anyone.
Moreover, in California, it is not just public educators that must insure that policies comply with constitutional free speech principles. By statute, private universities must do so as well, insofar as the policies apply to students. In California, Education Code section 94367 provides certain statutory free speech protections to students in private colleges and universities.
- Insure that harassment procedures comply with the most recent guidance on Title IX.
The harassment procedures of the institution should be thoroughly checked for compliance with current Title IX standards. For example, the OCR has described that under Title IX, educational institutions must establish policies and procedures, including written grievance procedures that provide a “prompt and equitable” resolution of student and employee complaints; that designate an employee who will serve as Title IX coordinator; and that require all “responsible employees” to report sexual misconduct to the Title IX Coordinator. A “responsible employee” is defined as a person authorized to take action to redress sexual misconduct, a person who has a duty to report such misconduct, or a person a student reasonably believes has such authority. Under OCR guidance, investigations of alleged conduct must be prompt, adequate, reliable, and impartial, and the institution must take satisfactory remedial actions to address claims of sexual misconduct, including investigating complaints, implementing interim protective measures, and taking necessary disciplinary action. The institution must also take necessary affirmative steps to prevent future reoccurrence. The OCR has provided guidance – in its 2014 Questions and Answers on Title IX and Sexual Violence document and in other publications including “Dear Colleague” letters – to be applied in numerous particular scenarios. A Title IX audit by counsel can help bring an institution’s processes into compliance with OCR’s expectations.
- Recognize that many instances of “shock art” and supposed harassment based on art projects will not violate Title IX.
In a time of increased vigilance toward Title IX issues, alarms may sound more readily over an art project or other work of expression that has harsh or inflammatory content. Nevertheless, even setting aside concerns of the First Amendment and academic freedom, there is a good chance that the artwork in question will not create a situation that calls for discipline or remedial action under Title IX. The standard for liability under Title IX, and state law, does not encompass merely offending other students, or making some students uncomfortable. Instead, for there to be liability of the institution under Title IX, the student “must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.” This is the standard articulated by the U.S. Supreme Court in its 1999 Davis v. Monroe County Board of Education decision. There is a good chance that a single student art project that shocks fellow students will not to meet this test, and as a secondary result will likely not trigger the need to discipline under the institution’s policies meant to safeguard against Title IX violations.
- Take account of what is and is not protected by the First Amendment and academic freedom — for example, Defamation is not.
For student speech, much of what a student submits in the classroom will have some level of protection. Generally, faculty may freely grade submissions, applying their professional judgment and curricular standards. As to student discipline, however, Courts will more strenuously apply free speech principles, and it benefits administrators to be alert to them. Defamation, including libel and slander, is not constitutionally protected. Defamation is generally considered a publication of fact, rather than pure opinion, which is false and has a natural tendency to injure or causes special damage; it can create legal liability if other requirements are met. Obscenity is also not protected by the First Amendment. The test for what constitutes obscenity takes into account “whether the work taken as a whole lacks serious literary, artistic, [or] political . . . value.” In addition, as a general matter, student speech that gives rise to a sufficiently serious threat of substantial disruption of or material interference with school activities can be the subject of discipline, consistent with constitutional standards. Importantly, student speech that creates a sufficiently serious threat of violence can warrant discipline notwithstanding First Amendment considerations. For example, the 2013 Ninth Circuit case Wynar v. Douglas County School District upholds discipline in the public high school context for a student’s speech regarding his engaging in on-campus violence.
Finally, administrators should be aware that California Education Code section 66301 provides certain free speech protections to students in public institutions, in addition to those conferred by the First Amendment, and this statute may need to be considered as well.
In conclusion, it is widely acknowledged that particularly in the realm of work by beginning artists, “shock” value has had a respected place based on at least a hundred years of tradition. The job for college and university administrators is to ascertain where lines are drawn with regard to free speech protections, and with regard to the mandates of prohibitions on harassment based on sex, so that administrators can ultimately make sound judgments.
This blog post was authored by Michael Lehman.
Legislation has been in place in California for decades preventing disparity in wages between men and women for doing the same job. The primary statute, Labor Code section 1197.5, is expected to be revised soon when Governor Brown signs a bill into law that would revise certain parts of that section, largely tightening exemptions for employers and creating longer record-keeping requirements.
According to a study cited by the sponsor of the bill, the difference in pay between men and women in California in 2014 was sixteen cents on the dollar. Under the current law, the equal pay analysis is made between men and women who work in the same establishment. Under the new law, however, the burden of proving gender discrimination in pay would no longer require that the pay comparison occur between men and women working in the same establishment.
Employers could still claim a bona fide reason for pay differentials for substantially similar work if the reason for paying lower wages is because that establishment is located in an area where the cost of living is less than the compared area where the cost of living is higher. For example, a female worker in a plant in Tulare, California could arguably make less than a male counterpart who works for the same employer in a plant in Los Angeles because of the higher cost of living in Los Angeles.
Until now, the statute has been somewhat vague in defining work comparison. The new statute would require equal pay for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”
The revised statute, however, would provide an out for the employer. A wage differential could be based upon: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; and (4) a bona fide factor other than sex such as education, training, or experience. This last exemption would require that the employer demonstrate that the factor is not based on or derived from a sex-based differential and that compensation is job-related with respect to the position in question and consistent with a business necessity. In order to prove business necessity, the employer would have to show an overriding legitimate business purpose such that the factor (e.g., training, education) relied upon effectively fulfills the business purpose it is supposed to serve. An employee could then demonstrate that an alternative business practice exists which would serve the same business purpose without producing the wage differential.
An employer who violates the wage differential would be liable to the employee affected in the amount of the differential and interest plus an additional equal amount as liquidated damages. The California Division of Labor Standards Enforcement will enforce this law, and could supervise the payment of wages and interest found to be due.
Under the new law, every employer would now have to maintain records of wages, wage rates, job classifications and other terms and conditions of employment of the persons employed for a period of three years rather than the current two years.
If the employee wants to file a complaint with the Division of Labor Standards Enforcement, they can do so and the division of Labor Standards Enforcement can prosecute civil actions on behalf of the employee. Additionally, any employee receiving less than the wage to which they believe they are entitled could recover the balance of the wages including interest thereon and liquidated damages on their own as long as they file suit within two years after their claim occurs (except where willful violation occurs where it could be three years after the cause of action occurs).
The statute also states that no employer can discharge or in any manner discriminate or retaliate against any employee when the employee attempts to enforce this section. The statute also states that an employer should not prohibit an employee from disclosing the employee’s wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under this section. This is obviously not as important for public sector employees whose wages are often made public in any event. Nothing in this section creates an obligation on the part of the employee to disclose their wages. If an employee is discharged, discriminated against, or retaliated against because of making a claim under this new law, the employee can bring a civil action within one year after the cause of action accrues.
All of this means it will be more important than ever to keep accurate records of the wages being paid to employees and make sure that any wage differential between men and women is supported by business necessity. As an employer, are you keeping records of your employees’ pay for three years? You should consider arranging now for human resources or legal counsel to look at your payroll practices to make sure you will be in compliance with the new statute, which is very likely to be signed into law soon.
We are excited to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Negotiations Services practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.
Last year, the National Labor Relations Board (NLRB), through its Region 13 Regional Director ruled that Northwestern University football players who receive grant-in-aid scholarships and have not exhausted their playing eligibility are “employees” under the National Labor Relations Act (NLRA), and therefore have the right to unionize and engage in collective bargaining with their “employer.” We reported on the potential implications of that decision and the likelihood of subsequent legal challenges to this ruling.
After last year’s decision, Northwestern filed a request for the NLRB Board to review that decision. The Board granted Northwestern’s request for review. On August 17, 2015, the Board issued a decision in which it unanimously declined to assert jurisdiction over this matter and dismissed the players’ representation petition. Importantly, the Board did not determine if the players were statutory employees under the NLRA. Rather, the Board decided that asserting jurisdiction would not “effectuate the policies of the Act” and “would not serve to promote stability in labor relations.”
As pointed out in our report on the initial ruling, the NLRB does not have jurisdiction over public universities. Of the approximately 125 college and university teams in NCAA Division I FBS football, the vast majority of these competitors are public colleges and universities for which the NLRB cannot assert jurisdiction. This means that if the NLRB chose to assert jurisdiction over only the Northwestern team players, there would very likely be ramifications and possibly some substantial unintended consequences for the other NCAA football teams. For instance, it would likely significantly impact competitive balances for players on one team and not others to have federally mandated collective bargaining rights. This would not promote stable labor relations across the league. Indeed, Northwestern is the only private school in its conference (the Big 10). The NLRB has no jurisdiction over any of its primary competitors. In its conclusion, the Board also noted that “recent changes as well as calls for additional reforms, suggest that the situation of scholarship players may well change in the near future.” For all these reasons the NLRB declined to assert its jurisdiction here.
Again, the Board did not decide whether these players were statutory employees. Also, the Board’s decision was very narrowly focused to the specific facts and circumstances of this case and applies only to the Northwestern players in this case. This means that this issue can and likely will be reconsidered in the future.
It will likely take many years and many more legal challenges to play out this issue and its potential implications on the employer/employee relationship in the context of college athletics.
The “Devil’s” in the Details
Velma Craig sued the City of New York, her former employer, because the City refused to accommodate her religious beliefs. Craig, a school safety officer, would not wear the City’s new identification cards because she believed the card’s computer chips storing fingerprints and other information were “the marks of the beast” and she would be “jeopardizing her salvation” if she agreed to accept the card. Craig was disciplined several times and eventually resigned. Representing herself, Craig remarkably won her case. The judge asked the City how it would be burdensome to accommodate Craig’s beliefs but received no meaningful response. Although Craig won her case, she suddenly dropped her lawsuit prior to a determination of damages. The judge awarded her $1.00.
Lesson learned: Even if an employee’s claims seem to be outlandish, the employer still is obliged to consider reasonable accommodations for religious beliefs. The employer was unable to show why the request to use the old identification card was unreasonable or burdensome, which led to the court ruling in the employee’s favor.
That Ain’t No Charlotte’s Web!
A West Virginia employer was sued by a former employee because he believed he was not provided a safe work environment. The employee was painting a room in the nursing home facility where he worked when a spider fell from the ceiling and bit him on his right arm. The employee claimed his employer had a gross disregard for his safety, health and welfare which caused him to have contact with the poisonous spider.
Lesson learned: The employer in this case most likely would not be liable for “gross disregard” unless the employee could show there was a history of poisonous spiders in the building, a known poisonous spider infestation, or some other circumstance that would place the employer on notice of a potentially dangerous condition. Here, the employee seems to have simply run into some bad luck.
Gonna Wash That Gray Right Outta My Hair
Plaintiff Sandra Rawline sued her former employer, Capital Title of Texas, LLC, for age discrimination. Rawline claimed she was fired because she refused to color her gray hair. The employer disputed that was the reason for her termination and claimed she was fired for coming in to work late smelling of alcohol. Notably, the employer did not deny a comment was made about Rawline’s hair, but explained it was in the context of suggesting to her that she try “wearing clothes that are more appropriate for the workplace and maybe such as getting her hair trimmed and dyed.” The employer claimed the comment was made because several complaints were received about her lack of professionalism. The court disagreed that the comment was evidence of age discrimination and dismissed the lawsuit.
Lesson learned: Even though the employer successfully defended the case, commenting to an employee that he or she should consider coloring gray hair probably is not the best idea.
Fighting Fire with Fire
A fire captain sued his employer for releasing him from his employment. The captain was let go because of his fear of entering burning buildings. In his lawsuit, the captain claimed he was discriminated against because of his disability—which he claimed was a fear of fire. The department’s position was that he was terminated because he created a danger to himself and others due to his fear of entering burning buildings. In his disability discrimination lawsuit, the captain was awarded $362,000. On appeal, however, the court reversed the decision, noting that no reasonable jury could find that a firefighter’s fear of fire is a disability under the ADA or any other state law.
Lesson learned: Sometimes, it is not possible to accommodate an employee’s alleged disability and sometimes, as in this case, what the employee believes is a disability actually is no disability at all. Logic in this case prevailed.
Search for a One-Armed Man
The EEOC sued Florida Commercial Security Services for disability discrimination following the firing of a one-armed security guard. The president of the community association where the guard was assigned wrote to the company, stating “The company is a joke. You sent me a one-armed security guard.” The company removed the guard and did not send him to a new assignment. The EEOC argued that relying on discriminatory customer preferences and stereotypes violates the Americans with Disabilities Act (ADA). The jury awarded the employee $35,922 in damages.
Lesson learned: In this case, the employer should not have relied on the discriminatory statement to remove the guard from his position. Instead, the employer was required to determine whether the guard was able to perform the essential functions of his position with or without accommodation.
Not An Employment Case But Interesting Nonetheless
An Oregon man sued an Idaho police department for monetary damages, alleging that police officers destroyed the mystical powers of his medicine bag. The man was stopped by police and arrested for drunk driving. In his lawsuit, he claimed he was persecuted because of his religious beliefs and he wanted damages for the destruction of the mystical powers. According to the man, the bag provided protection, had been blessed by a medicine woman in 1995, had not been opened since then, and the powers were destroyed when police opened the bag.
In a long anticipated decision, the California Supreme Court has held that a supervisor’s daily log, or file, was not a “file used for any personnel purposes” under the Firefighters Procedural Bill of Rights. In 2013, the Court of Appeal ruled that a fire captain’s daily log documenting firefighter performance should have been disclosed to the firefighter prior to the captain using the information to prepare a performance evaluation. The California Supreme Court disagreed and held that “because the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a ‘file used for any personnel purposes by his or her employer’ and [Government Code] section 3255 does not apply.”
The Firefighters Procedural Bill of Rights (FBOR), enacted in 2007, was intended to provide firefighters similar rights as those guaranteed to public safety officers by the Public Safety Officers Bill of Rights (POBR). In many areas, the FBOR contains identical language to that of the POBR. One of these areas is Government Code sections 3255 and 3256 of the FBOR (which mirror that of Government Code sections 3305 and 3306 of the POBR):
Government Code Section 3255
A firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment. However, the entry may be made if after reading the instrument the firefighter refuses to sign it. That fact shall be noted on that document, and signed or initialed by the firefighter.
Government Code Section 3256
A firefighter shall have 30 days within which to file a written response to any adverse comment entered in his or her personnel file. The written response shall be attached to, and shall accompany, the adverse comment.
Steve Poole is a firefighter with the Orange County Fire Authority (OCFA). From 2008 to 2010, Poole was supervised by Fire Captain Brett Culp, who was responsible for evaluating Poole’s performance. To assist in preparing the written evaluations of his subordinates, Captain Culp prepared daily logs on the firefighters he supervised. The daily logs were maintained by Captain Culp on a flash drive and in folders that were kept in his desk at the fire station. According to Captain Culp, the daily logs included “[a]ny factual occurrence or occurrences that would aid . . . in writing a thorough and fair annual review.” Captain Culp used his informal daily logs to assist him in preparing Poole’s annual performance evaluation for 2009.
Prior to preparing Poole’s performance evaluation, Captain Culp addressed certain performance and behavior issues with Poole. The daily log reflected descriptions of Poole’s activities and Captain Culp’s discussions with him. Not all the incidents mentioned in Captain Culp’s daily log were included in Poole’s performance evaluation. On occasion, Captain Culp also discussed Poole’s performance with Culp’s supervisors, human resources personnel, and attorneys for the OCFA. However, he never provided copies of his daily log to these individuals and never allowed other employees to review it.
After Poole received a substandard performance evaluation, he had an opportunity to review and respond before it was entered into his personnel file. After the evaluation was entered into his file, Poole requested a copy, which he shared with his union representative Bob James. James was suspicious of the level of detail in the evaluation and thought Captain Culp must have maintained a separate “station file” on Poole. Poole asked for that file, which was provided to him. Poole complained to the OCFA that he did not have an opportunity to respond to the notations in the daily log in violation of the FBOR. He asked for all negative comments based upon the logs to be removed from his file. The OCFA denied his request.
Poole filed a petition and complaint, requesting the OCFA to enter adverse comments in Poole’s files only after complying with Section 3255 of the FBOR. The trial court denied the petition, likening the daily logs to “post-it” notes that were intended to remind the supervisor of events when he prepared the annual performance evaluation. The trial court concluded the daily logs were not part of the personnel file and Poole had no right to respond to the adverse comments contained in the daily log. Poole appealed. The Court of Appeal held that the daily log was a personnel record for purposes of the FBOR. The OCFA appealed that decision to the California Supreme Court.
On August 24, 2015, the California Supreme Court determined that adverse comments placed in a fire captain’s informal “daily log” used to detail positive and negative performance of subordinate firefighters was not subject to Government Code sections 3255 and 3256 of the FBOR.
The California Supreme Court noted that the FBOR does not define the phrase “used for any personnel purposes” as set forth in Government Code section 3255. Therefore, the Supreme Court considered the plain language of the statute and concluded that section 3255 must be reviewed along with two other sections of the FBOR to determine its intent.
Section 3255 provides that the firefighter has the right to review and respond to adverse comments entered into the personnel file. Section 3256 allows a firefighter to respond in writing to any adverse comment that is entered into the personnel file, which is then attached to the adverse comment. Section 3256.5 allows the firefighter to inspect “personnel files that are used or have been used to determine that firefighter’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.” The firefighter further has a right to request that incorrect information be removed from the file. (Gov. Code, section 3256.5, subds. (c), (d).)
The Supreme Court, therefore, determined the Legislature was concerned not with “any and all” files but with those that related to the firefighter’s “qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.” As such, a “supervisor’s log that is used solely to help its creator remember past events does not fall within the scope of that definition.” The Supreme Court further noted that this interpretation would be the same under the Public Safety Officers Procedural Bill of Rights.
The Supreme Court also emphasized that Captain Culp was not Poole’s employer and he had no authority to take any adverse disciplinary action, such as demotion or discharge, against Poole on behalf of the OCFA. Rather, Culp’s comments could only adversely affect plaintiff if and when the comments were placed in a personnel file, or in some other form, and those who had the authority to discipline Poole had access. The Supreme Court found no evidence that this occurred in the Poole case, thus, Culp’s supervisor’s file was not subject to the requirements of section 3255.
The Supreme Court also found that the Court of Appeal’s application of Miller v. Chico Unified School District (1979) 24 Cal. 3d 703, which interprets Education Code section 44031 regarding an educator’s right to review and comment on information of a “derogatory nature” before being placed in a personnel file, was misplaced. The Supreme Court distinguished Miller because the supervisor in that case used her notes to prepare memos that were sent directly to the Board of Education so that it could make a determination regarding Miller’s employment. Here, the Supreme Court noted that although Captain Culp discussed Poole’s performance with his Battalion Chief, he did not share the actual logs. The Supreme Court found that the FBOR does not “regulate a supervisor’s preliminary verbal consultations with his superiors or human resources personnel prior to completing an evaluation.”
While this case holds a supervisor’s logs are not a “personnel file” under section 3255, it is important to note the limitations of the decision. The Supreme Court remarked several times that because the logs were not available or shown to anyone else, they did not constitute a “personnel file.” Moreover, the Supreme Court noted that the fire captain did not have any independent authority to take an adverse action against Poole employee. A change in these facts may have resulted in a different holding.
This case will most likely have an effect on law enforcement agencies as well given the almost identical language in these sections under the POBR (Government Code sections 3305-3306) as in the FBOR sections reviewed by the Supreme Court (Government Code sections 3255-3256).
Fire Departments and Law Enforcement Agencies with employees covered under the FBOR and POBR should review their current practices and procedures regarding the use of a supervisor’s file or other informal daily log to track performance to ensure that supervisors understand that the manner in which the supervisor maintains his or her supervisor’s file may determine whether the subject officer or firefighter has a right to review comments prior to submission in the file. While a supervisor can apparently discuss the contents of a supervisor’s file with superior officers or human resources personnel without bringing the file within the purview of the FBOR or POBR, sharing the contents of the file with superiors or other employees may have a different outcome. Thus, agencies may contemplate protocols to prevent inadvertent disclosure or sharing of supervisor’s files.
In addition, if the notes are utilized by individuals who have the authority to make decisions regarding “qualifications for employment, promotion, additional compensation, or termination or other disciplinary action,” the outcome may also be different. For example, if the supervisor maintaining the file does have the discretion and authority to impose discipline, would the supervisor’s file fall within the parameters of section 3255 (FBOR) or 3305 (POBR)? While the Poole decision is a good one for public agencies, it does leave open several questions.
Poole v. Orange County Fire Authority (Aug. 24, 2015, S215300)
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With a little less than four months left in 2015, now is the time to evaluate your Affordable Care Act (“ACA”) compliance. If you are an applicable large employer or an employer that sponsors a self-insured health plan, you must provide written statements (e.g. copy of completed reporting form) to employees no later than January 31, 2016 and must file reporting forms with the Internal Revenue Service (“IRS”) by February 28, 2016 (March 31, 2016 if filing electronically). The IRS recently released new draft forms and instructions for 2015 reporting. They also increased reporting penalties for noncompliance. Review the steps below to ensure your timely and accurate compliance.
Confirm ACA Plan
As of January 1, 2015, applicable large employers have exposure to potential penalties under the ACA for failure to offer affordable coverage to full-time employees (“employer mandate”). Employers with around 50 full-time employees should document the “applicable large employer” calculation.
- Employers with 50+ full-time employees, including full-time equivalents, per the calculation must comply with reporting requirements.
- Employers with 50 to 99 full-time employees, including full-time equivalents, per the calculation have relief from exposure to penalties in 2015 but still must report.
Employers who know they are applicable large employers should:
- Confirm method for identifying full-time employees (Monthly v. Look Back Measurement Method Safe Harbor (“LBSH”));
- If using the LBSH, review practices and follow the complex rules relating to timing of full-time status, reasonable expectation analysis, and calculation of hours of service;
- Identify whether offered coverage is affordable and select affordability safe harbor;
- Review applicable contracts to determine how full-time status of employees could interact with existing contract provisions for eligibility for health benefits.
New Reporting Forms and Instructions Released for 2015
The IRS released new draft reporting forms and instructions for 2015 reporting. Applicable large employers will need to report the following information for each month of the calendar year:
- Identity of each full-time employee (using ACA’s full-time definition);
- Whether minimum essential health coverage providing minimum value was offered;
- Whether the offer was made to dependent children and spouses;
- Whether the offer was affordable (identify of the affordability safe harbor); and
- The employee’s premium contribution to the lowest cost employee-only plan.
Employers offering self-insured coverage will also need to report the identity and social security numbers of covered employees and beneficiaries.
The IRS stated that the recently released 2015 forms are drafts only and should not be used until final versions are released. Presumably, the IRS will release the final forms at the end of this year and before the reporting deadlines.
Preparing for 2016 Reporting Deadlines
The applicable large employer (or employer with a self-insured plan) must report 2015 calendar year data, even if it has a non-calendar year plan. Employers should be reviewing the 2015 reporting instructions and forms to familiarize themselves with the documents. We recommend that you do the following:
- Identify which forms you are required to file;
- Identify potentially applicable reporting codes;
- Identify procedure to gather relevant data;
- Identify your timeline and procedure to identify full-time employees;
- Prepare timeline for gathering data and completing forms;
- Identify any issues or questions to get them resolved early.
Increased Reporting Penalties
The IRS recently increased reporting penalties under the ACA for general reporting failures, including failure to file by the due date, failure to include required information or failure to provide accurate information. These penalties are $250 per return ($3,000,000 maximum penalty). If the employer corrects or files the return within 30 days after the required filing date, then the penalty will be reduced to $50 per return, up to a maximum of $500,000. If the failure to file results from intentional disregard, the penalty increases to $500 per return with no maximum cap. These penalties also apply separately to each individual written statement that an employer must provide to employees under these reporting requirements.
The draft versions of the revised reporting forms and instructions can be found at the links below:
Form 1095-C: http://www.irs.gov/pub/irs-dft/f1095c–dft.pdf
Form 1094-C: http://www.irs.gov/pub/irs-dft/f1094c–dft.pdf
Form 1094-C and 1095-C Instructions: http://www.irs.gov/pub/irs-dft/i109495c–dft.pdf
Form 1095-B: http://www.irs.gov/pub/irs-dft/f1095b–dft.pdf
Form 1094-B: http://www.irs.gov/pub/irs-dft/f1094b–dft.pdf
Form 1094-B and 1095-B Instructions: http://www.irs.gov/pub/irs-dft/i109495b–dft.pdf
Frequently, in a lawsuit, a defendant will use a procedural device known as a motion for summary judgment to dismiss either the entire lawsuit or certain claims from the case. The motion for summary judgment is an invaluable tool because, where successful, it precludes a lawsuit from reaching a jury. A recent Ninth Circuit Court of Appeals decision, however, France v. Johnson, et al., takes the position that it does not “take much for a plaintiff in a discrimination case to overcome a summary judgment motion.”
To prevail on a motion for summary judgment, a defendant must demonstrate that no genuine dispute as to any material fact exists and the right to a defense judgment is appropriate as a matter of law. In employment discrimination cases where the plaintiff lacks direct evidence of discriminatory animus, a motion for summary judgment is typically considered under a three-step process (commonly called the McDonnell Douglas framework). Under this framework, a plaintiff must carry the initial burden to establish a prima facie case that creates an inference of discrimination. If the employee establishes a prima facie case, an inference of discrimination arises and the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for its employment action. If the employer does so, the burden shifts back to the employee to prove that the employer’s explanation is a pretext for discrimination.
In France, John M. France, the Plaintiff, was employed as a border patrol agent assigned to the Tucson Sector of Border Patrol (an agency of the United States Department of Homeland Security, “DHS”). In March 2007, Tucson Sector Chief Patrol Agent Robert Gilbert, established a pilot program which split Assistant Chief Patrol Agent positions into two categories: GS-14 and GS-15. The GS-15 position offered an increased pay grade. Four GS-15 positions were created. Twenty-four candidates applied and twelve were invited by Gilbert for the first round of interviews. France was one of the twelve. The panel of interviewers for the first round consisted of Gilbert, and two other DHS officers. After the interviews, the panel selected six top-ranked candidates for final consideration. France was not selected. Gilbert recommended four of the six to Chief Border Patrol Agent David Aguilar, who were recommended by Aguilar to the ultimate decision-maker. France was 54 years old, and the four selected candidates, all of whom were in the top-ranked group, were 44, 45, 47, and 48. France sued the DHS, alleging that it discriminated against him based on his age.
Following discovery, DHS moved for summary judgment. DHS presented evidence of nondiscriminatory reasons for not promoting France. Agent Gilbert provided evidence that France lacked the leadership and judgment for the GS-15 position. Agent Aguilar gave six reasons for why he did not recommend promoting France, including France’s lack of leadership, flexibility, and innovation. In opposition, France provided evidence that Gilbert expressed his preference for “young, dynamic, agents” to staff for the new positions and that Gilbert had repeated retirement discussions with him, despite France’s clear indication that he did not want to retire. France also offered testimony from two other DHS officers who stated that Chief Border Patrol Agent Aguilar preferred to promote younger, less experienced agents. The District Court granted DHS’s motion for summary judgment. Subsequently, Ninth Circuit Court of Appeals reversed the ruling.
In finding that the District Court erred in granting the motion for summary judgment, the Court of Appeals reached several notable conclusions. First, the Court found that an average age difference of less than ten years between the plaintiff and the replacement is presumptively insubstantial and does not support a claim for age discrimination. The Court held, however, that this does not preclude a plaintiff who is less than ten years older than his or her replacement to produce evidence that rebuts the presumption and demonstrates that the employer considered his or her age to be significant.
The Ninth Circuit Court then explained that in opposition to DHS’s Motion for Summary Judgment, France produced “direct” and “circumstantial” evidence. Direct evidence consists of statements by persons involved in the decision-making process that directly reflect the alleged discriminatory attitude. Circumstantial evidence includes stray remarks not directly tied to the decision-making process but nonetheless relevant. The Court indicated, without expressly ruling, that, Gilbert’s remarks about his preference for “young, dynamic agents” to staff the GS-15 positions were likely direct evidence. The Court also ruled that France presented circumstantial evidence consisting of Gilbert’s repeated retirement discussions, which demonstrated Gilbert’s bias in his decision-making process. The Court emphasized that the District Court had to “cumulatively” consider the direct and circumstantial evidence together. The Court concluded that the totality of the evidence presented by France was sufficient to defeat DHS’s motion for summary judgment and send the case to the jury.
Employers frequently speak with employees about their retirement options. The France decision is a lesson to employers to tread lightly when broaching the subject of retirement with employees over the age of 40. The Court remarked that standing alone Gilbert’s remark about his preference for “young dynamic agents” would be “thin support to create a genuine dispute of material fact.” In combination with Gilbert’s repeated retirement discussions, however, the Court found the evidence sufficient to defeat the motion for summary judgment.
Therefore, where retirement is voluntary, supervisors and managers should be wary of “nudging” senior employees to retire. Rather, employers should limit their inquiries to asking employees about their retirement plans. Employers can also inform their employees about their retirement options. Managers and supervisors, however, should generally curb discussions regarding voluntary retirement with employees who have expressed their disinterest in retirement.