2015 Employment Law Issues Tournament: First Round Results and Recaps
This past weekend, while college basketball teams across America finished up their conference tournaments, 64 employment law issues played in the first round of our tournament, and boy did it live up to the hype. Filled with upsets galore and exciting finishes, employment law fans everywhere were not disappointed.
Kevin, a Human Resources professional at a Midwest-based butter sculpting company and die hard Paid Sick Leave fan even remarked: “I deal with employment madness all day, and I’ve simply never seen madness like this and it’s Awesome with a capital A baby.” Rebecca, the General Counsel at the same company as Kevin said: “I’m really not amused by this; my entire HR department is now a lost cause for the next two weeks – thank you Mintz Levin!” And then there was Marvin, the CFO at a second-tier nap pod manufacturer and distributor, who asked: “What is happening right now? Seriously, someone tell me.”
We’ll tell you what is happening Marv – we are trying to figure out the most important employment law issue of the day, and while there is no real answer to this question, we thought we’d take a stab at it anyway. And now, below, we are pleased to present you with the results from the round of 64, including some recaps of the best matchups.
But before we continue however, we are contractually-obligated to restate the following:
Employers should pay careful attention to the workplace issues associated with March Madness. We wrote a wonderful post on these issues last year entitled Does March Madness = Workplace Madness? Some Thoughts on the Legality of NCAA Bracket Pools, the Tournament’s Effect on the Workplace, and of course, a Rendition of One Shining Moment. We encourage you to revisit that post to prepare for this year’s tournament. The basketball references are a bit dated (obviously), but the analysis still holds water.
Now on to the first round results and recaps.
ROUND 1 RESULTS
Here are the full results from Round 1 with the winners in BOLD. You can find the updated bracket with the Round 1 winners here.
Wage and Hour Region
IC Misclassification (1) v. Posting Requirements (16)
Non-Solicitation Covenants (8) v. Non-Recruitment Covenants (9) (recap below)
Wage Deductions (5) v. Background Check Disparate Impact Claim (12) (recap below)
Minimum Wage (4) v. Accrued But Unused PTO (13)
At-Will Employment (6) v. Wage Theft Acts (11) (recap below)
Social Media Policies (3) v. Unemployment Discrimination (14)
Written Job Descriptions (7) v. Quid Pro Quo Sexual Harassment (10)
Hostile Work Environment (2) v. Payment of Final Wages (15)
Overtime Pay (1) v. Short Term Disability (16)
Unpaid Interns (8) v. Performance Evaluations (9) (recap below)
Joint Employers (5) v. Bring Your Own Device Policies (12)
Pregnancy Accommodations (4) v. Contractually-Shortened SOLs (13)
Arbitration Agreements (6) v. Interactive Process (11)
Mental Disabilities (3) v. Associational Discrimination (14)
Paid Sick Leave (7) v. Warn Liability (10) (recap below)
Retaliation Claims (2) v. Employee Drug Testing (15) (recap below)
Restrictive Covenant Region
Wage & Hour Collective Actions (1) v. Workers’ Compensation (16)
Age Discrimination (8) v. Religious Discrimination (9)
Reasonable Accommodations (5) v. Non-Disclosure Agreements (12)
NLRB In White Collar Workplace (4) v. Off-The-Clock Work (13)
Gender Discrimination (6) v. Automatic Meal Deductions (11) (Recap Below)
Exemption Misclassification (3) v. Employee Handbooks (14)
OSHA Whistleblowers (7) v. Parental Leave (10)
FMLA Leave (2) v. Severance Pay (15)
Leave Management Region
Disability Discrimination (1) v. Exit Interviews (16)
Wellness Programs (8) v. Genetic Information Discrimination (9)
OWBPA Waivers (5) v. Anti-Discrimination/Harassment Training (12) (Recap Below)
Non-Competition Covenants (4) v. Unemployment Benefits (13)
Trade Secrets (6) v. Ban The Box (11)
Collective/Class Action Waivers (3) v. Post/Pre-liminary Activities (14)
Intermittent Leave (7) v. Reductions In Force (10) (Recap Below)
Wage & Hour Class Actions (2) v. Anti-Bullying Laws (15)
ROUND 1 RECAPS
These were the featured matchups from the weekend:
Wage and Hour Region: No. 8 Non-Solicitation v. No. 9 Non-Recruitment
Team Non-Recruitment Covenants, which I understand completely resents its low seed, has been nipping at Team Non-Solicitation Covenants’ heels all season. Isn’t it equally important to prevent a former employee from siphoning off your customers and employees? Given how dangerous a former employee can be – operating from the outside, no longer under an employer’s control, and with deep and perhaps long time knowledge of the business operations, failing to take the right steps – or worse, taking the wrong steps to protect the business – can be disastrous. Evenly matched? You can say that. But this game comes down to this: what is more important: your business? Or your employees? Can’t decide? Does that formula change depending on factors outside of your control? These are headliner issues folks and frankly, I share in the collective resentment for the middle of the road seed. They are contenders.
Evenly matched as they are, Team Non-Solicitation Covenants prevails in a “narrowly enforced” game. Time, money and effort are spent recruiting, training, compensating, and grooming employees … but let’s face it, if any employee wants to go, they can go. Customers on the other hand would seem to win out every time – after all, isn’t it the customer who throws off the revenue that is used to pay those employees? Isn’t the customer the reason you are in business? Stay tuned however for the next round, because the flaws for Non-Solicitation Covenants lie in careless drafting and a lack of attention to governing law – kind of like running the baseline on an inbound pass – when can you do it and when is it traveling? And the coaching is suspect too: knowing what play to call when will make the difference between a win and a loss (an enforceable provision and an unenforceable one) – those are the kinds of challenges this team will face in the next round.
Discrimination Region: No. 8 Unpaid Interns vs. No. 9 Performance Evaluations
Team Unpaid Interns burst onto the employment law scene in 2011 as that year’s Cinderella success story after two former unpaid interns sued Fox Searchlight claiming that the company should have classified them and other interns as employees and therefore, paid them at least the minimum wage and overtime. Two years later they made a run deep into the tournament after a New York Federal Court allowed the interns to seek collective relief. After dozens of other collective and class action lawsuits were filed against fashion and media companies last year, the Unpaid Interns entered this year at No. 4 in the pre-season issue rankings. But a recent oral argument before the Second Circuit that was highly critical of the DOL’s six-factor unpaid intern test resulted in a late-season slipping in the rankings. Don’t be fooled however, this team still has a couple of blue chippers ready to make some noise.
The Unpaid Interns present a formidable matchup for the Performance Evaluations, which had another decent year, piling up wins against other ranked teams, yet they still finished just third in Employee Performance Management Conference. The Performance Evaluations continue to play an important role in the workplace – they measure an employee’s expected vs. actual performance, help set employee expectations and goals for the future, and perhaps just as importantly, they help employers defend against potential employment discrimination claims. But often times, employers give the Performance Evaluations short shrift or fail to complete them altogether. In other words, the Performance Evaluations are like the Kansas of employment law issues – well-coached, loaded with talent, solid defensively and consistent offensively, and while always in the mix, they have faltered in the tournament where other similarly constructed teams have prevailed.
Upset Alert: The No. 9 Performance Evaluations squeak by the No. 8 Unpaid Interns in a double overtime thriller. While a recent up and comer, studies show that most employers already pay their interns and, in light of these recent lawsuits, other employers have modified or eliminated their intern programs to mitigate against potential liability . With the Second Circuit about to make it harder to win these cases, we think the so-called “next wave” of class action lawsuits will cause little more than a tiny ripple in the litigation ocean. Performance evaluations remain one of the most effective tools employers have at their disposal to help with employee development and to defend against discrimination claims. They were around before the unpaid intern issue and they’ll be around after, and off to the second round they go.
Discrimination Region: No. 2 Retaliation vs. No. 15 Employee Drug Testing
Team Retaliation has come on strong again this year, drawing on a deep bench of talent that has enabled it to dominate the tournament for several consecutive seasons. In 2014, retaliation claims were once again the preeminent category of EEOC charge, rolling over all competitors, including second-place Race Discrimination, which garnered a paltry 35 points (as a percentage of EEOC filings) to Retaliation’s 42. Retaliation’s renowned position no doubt stems from its strong fundamentals, which have been bolstered significantly in recent years by the Supreme Court’s decisions in Burlington Northern & Santa Fe Railway Co. v. White, which expanded the type of employer conduct that constitutes retaliation, and Thompson v. North American Stainless, which broadened the categories of workers entitled to bring retaliation claims. Retaliation also benefits from an increased awareness among U.S. workers that they can seek damages when an employer punishes them for challenging discriminatory practices, a fact that will be especially formidable if brought to bear on game day. If Retaliation can continue this trend, it may well become the Kentucky of the Employment Law Issues Tournament.
Awaiting a chance to upset Retaliation is the often underestimated Team Employee Drug Testing. The Drug Testers were soundly defeated earlier in the season by their traditional rival Disability Discrimination shortly before eking out a narrow victory against newcomer Medical Marijuana. More recently, the Drug Testers faltered after giving up one too many offensive rebounds to their nemesis’ sister school, Reasonable Accommodation. In two federal decisions in late 2014 and early 2015, two companies settled lawsuits by job candidates who could not provide urine samples in connection with their applications because they were on dialysis due to kidney disease. The employers likely recognized that offering to deviate from their standard drug testing procedures by obtaining blood or hair samples would not have been particularly unreasonable accommodations. Granted, these were extremely hostile road games in the Fourth Circuit against some surprisingly good offenses supported by enthusiastic EEOC cheerleaders. Still, with its weaknesses exposed, Drug Testing remains the underdog in its match-up against Retaliation.
The No. 2 Retaliation conquers No. 15 Employee Drug Testing. Drug Testing seemed to commit a turnover on every possession and had difficulty navigating its own tricky regulatory requirements concerning post-offer and reasonable suspicion testing. As a result, many employers avoid the thorny liability issues associated with drug testing by simply foregoing the practice altogether. Moreover, in safety-sensitive industries where testing is essential, such as transportation, testing protocols have been largely standardized and are less susceptible to legal challenges. Retaliation, on the other hand, is a fixture at every level of the workforce, with claims brought by everyone from Wall Street executives to hourly manufacturing workers. Retaliation fans can thus look forward to seeing their team in the next round.
Leave Management Region – No. 7 Intermittent Leave vs. No. 10 Reductions in Force
Previously a mainstay at the Division II level, employee handbook favorite Team Intermittent Leave makes its long-awaited appearance in the big dance. As employers increasingly recognize the need for greater flexibility with work schedules, the bright lights of the tournament are a reminder that a clearly articulated and consistently applied intermittent leave policy may not only be considered good management, but that such leave is protected by the FMLA. Employees are allowed to take intermittent leave or work a reduced schedule when medically necessary to care for a serious health condition of the employee or family member. It does not extend to care of a newborn child or newly adopted or placed foster care child unless the employer approves. With the expansion of adoption by same sex couples, employers need to be mindful of uniformity of their practices across the workforce.
Their opponent, Team Reductions in Force – the Ragin’ RIFs – remains irate about their low seeding in the Leave Management Region. After being on the forefront of every HR mangers’ mind during the Great Recession, this team has not received the television coverage it was accustomed to in its heyday. However, we were reminded this past year by the Sixth Circuit that this team is not to be underestimated as that court refined its standard for RIF discrimination cases. In its ruling in Pierson v. Quad/Graphics Printing Corp., the court found a question of fact existed as to whether the employee’s position as plant facilities manager had been eliminated as opposed to being reassigned. Of important note, the court deviated from a prior standard under which an employee who was assigned a discharged employee’s duties in addition to their own, would not have been considered a replacement. The employer in Pierson also learned the important lesson that the appearance of shifting reasons for the basis of termination will not be looked upon favorably in discrimination claims.
Despite a great effort by Team Intermittent Leave, the RIFs were not their ideal opponent in a tournament that is based on the NCAA tournament. This year’s tournament begins with numerous collegiate athletic departments facing critical financial decisions to sustain the operation of their teams. The pressure will only increase with the “Big 5” conferences positioned to provide larger athletic grants-in-aid, a pressure that may cause across-the-board reductions in non-revenue generating sports. These hard financial decisions with ultimately impact many jobs in the intercollegiate athletics space. This outcome was never in doubt. The RIFs will move on.
Leave Management Region – No. 5 OWBPA Waivers vs. No. 12 Anti-Discrimination / Harassment Training
Fans of Team Older Worker Benefit Protection Act Waivers were on the edge of their seats to find out if their team would even make the tournament this year. Team OWBPA Waivers should know better than anyone how important the rules and proper timing are, but earlier this season they tried to lock in a recruit before the mandatory seven-day revocation period and almost found themselves sidelined from the tournament for rules violations. In light of their knowing and voluntary self-reporting, though, the Tournament Selection Committee showed leniency and allowed them to go to the Big Dance (sorry Syracuse fans). Team OWBPA Waivers is not limping into the tournament by any means, though. With a roster made up almost entirely of seniors, Team OWBPA Waivers has the depth and experience to make a long run this year (or at least to stick around for the next 21 days). The key to OWBPA Waivers’ success will be its ability to enforce itself offensively and not be whistled for overreaching. If they follow their very detailed game plan, they could outlast their competition.
Anti-Discrimination/Harassment Training, on the other hand, is under-ranked yet again this year, setting them up for a potential VCU-like run. No one seems to show this team the respect they deserve. Maybe it is fact that their Princeton-style offense is not flashy (and is sometimes outright boring) or that attendance at the games is mandatory for all students, but no one seems to like sitting through a Training game. Still, ADHT’s fundamentals have proven time and time again that they can win with their stifling defense – they can always stop their opponents from getting to the basket.
This matchup was ripe for the obligatory 5 v. 12 upset, and Team Anti-Discrimination / Harassment Training delivered, winning easily. This matchup showed that sometimes, the best offense is a great defense. If your managers follow the ADHT game plan and know how to avoid discriminatory or harassing conduct, then you don’t need to worry quite as much about whether or not departing employees validly release their ADEA claims against the company.
Wage and Hour Region: No. 6 At-Will Employment vs. No. 11 Wage Theft Acts
By Frank Hupfl
Talk about comeback kids. After huge wins in New York and California in 2011 and 2012, this program largely floundered for the past couple of years, until returning in a big way this year. The buzz behind team Wage Theft Acts has been growing recently, due in large part to their decisive victory in D.C. in late February. Are they contenders? Probably not this year, though we definitely think this is a program to follow in the future. Consider yourself on notice.
What to say about this dynasty that hasn’t already been said time and time again? A staple of the tournament, any year could be team At-Will Employment’s year. Their embarrassingly low ranking is deceiving, and is due mostly to two bad losses against a plucky NLRB who exposed them for their carefree playing style in employee handbooks. If At-Will Employment wants to stick around, they should stick to the fundamentals, and not stray too far from what they know works.
No upsets here; team Wage Theft Acts was simply outmatched and it showed. This was a statement game: Team At-Will Employment came out and said we’re not going anywhere. That said, keep your eyes on team Wage Theft Acts in the future, their phoenix-like reappearance on the scene may lead to increased recruitment on a national scale, and in a few years, a lot more employers may have a team Wage Theft Acts poster hanging on their wall.
Discrimination Region: No.7 Paid Sick Leave v. No. 10 WARN Liability
By Jennifer Rubin
Here is yet another example of bracket disrespect, but this time to No. 7 Paid Sick Leave. Let’s face it, No. 10 WARN liability is so yesterday. Kind of like the old glory days of the Big East when you counted the days to the conference tournament because it never disappointed. Paid Sick Leave is THE newest and latest and greatest in local government activism. And anyone gets to play. Yes, not just San Francisco, a long-time leader in this field, but now New York City, Oakland, Jersey City, Seattle, and even smaller localities like Montclair, New Jersey are getting in the game. How can an employer possibly comply with a crazy patchwork of laws? But WARN just won’t quit. At least one court has recently concluded that an investor may be subject to WARN liability for the abrupt closure of a portfolio company. If paid sick leave didn’t scare you, that holding should send chills down employer’s spines.
Even the recent WARN scare won’t be enough to outlast paid sick leave. WARN just doesn’t have the legs. We all know the statute is out there and will do everything possible to comply with it – but does it really impact an employer’s daily life? Paid sick leave on the other hand – now that is something that employers are going to need to be sorting through – and it will become a real chore for the multijurisdictional employer looking to put a single sick leave policy in place. While we are at it, how do we handle plain old vanilla PTO policies? And does the dribbler need to have one or both feet over the line for an over and back violation? Stay tuned to the next round – this could be exciting!
Wage and Hour Region: No. 5 Wage Deductions v. No. 12 Background Check Disparate Impact Claims
Written by Brent Douglas
Most analysts were miffed by Wage Deductions low ranking. Perhaps we are too. But we do know that the No. 5 Wage Deductions remain a misunderstood enigma by most employers. As Mintz Levin Employment Law Bracketmaster Michael Arnold opined almost a year and half ago: “If you haven’t thought about this issue for some time, there’s a reasonably good chance you were doing it wrong before, and if you don’t pay attention to this issue now, there’s an even better chance you’ll be doing it wrong in the future.” The same holds true today. Employers with the best of intentions want to deduct modest amounts from employee’s paychecks for entirely innocuous reasons like: employee purchases of tools, equipment, and work-required uniforms; recoupment of unauthorized expenses; and repayment of employer losses like breakages and cash shortages. Guess what? In most cases: They can’t! And that’s just New York. In California, employers cannot make these deductions or recoup things like advanced vacation time from when an employee is allowed to carry a negative PTO balance. Further, if employers do make the illegal deduction, they are now on the hook for waiting time penalties, potential minimum wage violations, statutory penalties, liquidated damages in the amount of wages wrongfully withheld, and attorneys’ fees. In other words, this team will lure you into the lane Duke-style, take the charge and get your best players into foul trouble. Before you know it, the game may get away from you. No one likes watching teams win this way, but that’s what the Dunkin’ Deductors do and have been doing for years.
On the other bench is No. 12 Background Check Disparate Impact Claims – a relatively newcomer to the tournament. Although Background Check DI Claims hail from a strong conference, this team’s bubble probably should have burst this year. Mintz Levin Bracketologist Jessica Catlow warned fans at home at the start of the season that the EEOC’s recent attempts to curb companies’ use of background checks were failing. Last spring, a federal court shot down the EEOC’s claim in EEOC v. Kaplan Higher Education Corp. that Kaplan’s use of credit checks caused it to screen out more African-Americans because of its exclusion of applicants with poor credit scores and delinquent child support payments. Then, just two months ago, two Defendants in EEOC-led background check diverse impact claims alleged that the EEOC conducted discriminatory background checks of their own! And then last month, in a decision that was heavily critical of eth EEOC’s actions, the 4th Circuit said that a lower court properly excluded expert testimony proffered by the EEOC to establish the alleged disparate impact of the employer’s background check policies.
While fans love a good No. 12-No. 5 upset, the Background Check DI Claims were no match for the Wage Deductions. The DI Claims have been struggling all year and it showed. Overpowered early, BCDIC teammates began to publicly attack each other, until they decided it best to place blame their shortcomings on another governmental department, likely the IRS. The sanctity of accurate pay and the staggering array of penalties that come from infractions make Wage Deductions a rising star. And it’s off to the next round, where the Wage Deductions will face upstart Team Accrued But Unused Vacation Pay who defeated No. 4 Minimum Wage in the biggest surprise of the tournament thus far.
Restrictive Covenant Region: Gender Discrimination (6) v. Automatic Meal Deductions (11)
Written by Michael Arnold
Team Gender Discrimination is loaded with potential claim talent: all-stars like pregnancy, transgender, and gender identity discrimination each put up consistent stats over the course of the season. And they continue to dominate the sports page headlines out in Silicon Valley. But bad losses in Equal Employment Opportunity Conference play to powerhouses Retaliation and Race Discrimination and also to lower-ranked National Origin discrimination saw Gender Nation fall down to the six spot. But they will make a run, rest assured, and if anyone refers to them as this year’s Cinderella team, we can guarantee you a process server will be knocking on your door.
Meanwhile, what can we say about the Automatic Meal Deductions that hasn’t been said already? The answer is pretty much anything, because few people are writing about this issue. But they should, as automatic deduction violations have proven costly to employers who get it wrong. When an employer’s meal deduction timekeeping practice is as automatic as Gonzaga’s Kyle Wiltjer’s three-point shot, then it may have a problem. To have a chance against the AMDs, your team better (i) have a clearly articulated policy regarding substitutions (deductions), (ii) require that your players report to the scorer’s table before they sub into the game (report when they’ve worked through a meal period), and (iii) inform them that they will be T’d up if they don’t report (will be subject to discipline if they don’t report working through a meal).
Gender Discrimination moves on in a laugher. This team continued to improve during the year and shows no signs of slowing down: We are seeing gender discrimination law develop in interesting ways, especially with respect to transgender discrimination as the EEOC is starting to file lawsuits focusing on this protected class. And freshman phenom Caregiver Responsibilities Discrimination helped lead a second half (non-EEOC-related) charge that bolted the Gender Discriminations past the Automatic Meal Deductions. Team Automatic Deduction never really stood a chance especially as courts have recently signaled that they are not keen on certifying these claims as class or collective actions. Next up for the Team Gender Discrimination is heavily-favored Exemption Misclassifications.