Category Archives: Trial Strategy

July 19, 2018

FAQs About Implementing Arbitration Agreements and Class Action Waivers

Bryan Benard

In late May, the U.S. Supreme Court ruled that arbitration agreements between an employer and an employee to resolve employment disputes through one-on-one arbitration do not violate the National Labor Relations Act (NLRA). In a huge win for businesses, the Epic Systems Corp. v. Lewis decision means that employers may use arbitration agreements to prohibit employees from filing and joining class or collective action lawsuits in employment-related matters.

In the weeks since SCOTUS’s decision, organizations have asked important and thoughtful questions on how to implement and use arbitration agreements and class action waivers with their employees. Although no guidance is “one-size-fits-all,” these FAQs may help answer common issues that come up.

Why Should We Use an Arbitration Agreement?

By requiring that employees resolve employment disputes through arbitration instead of filing a lawsuit in court, employers may benefit from numerous differences in both procedure and exposure. First, proceedings before a neutral arbitrator (or panel of arbitrators) are handled in private whereas lawsuits filed in a state or federal court are available to the public. In other words, unless documents are filed under seal, most court documents, hearings, and trials will be open to anyone, including reporters, competitors, other employees, etc. Consequently, requiring arbitration keeps publicity related to employment disputes at a minimum.

Second, procedures and evidentiary rules differ between arbitration and court proceedings. An employer may set forth in the arbitration agreement which arbitration rules will govern employment-related disputes. In addition, the employer and employee (and their attorneys) mutually select an arbitrator whereas the parties to a court action do not have input into the judge assigned to their lawsuit. In addition, an arbitrator has broad discretion over discovery and need not follow formal discovery and civil procedure rules that govern the courts (which may or may not be desirable in a given context). Finally, although there are some grounds for judicial review, arbitration awards generally cannot be appealed, meaning that disputes can get to a final resolution quicker.

What are the Benefits of a Class Action Waiver?

A class action waiver is typically one provision within an arbitration agreement stating that the employee agrees to resolve employment disputes on an individual basis and agrees to refrain from pursuing or joining any class or collective actions in conjunction with his or her fellow employees. By having employees waive class actions, businesses may avoid lengthy and expensive class action lawsuits that often involve hundreds, even thousands, of current and/or former employees nationwide. In addition, attorneys who represent employees are unlikely to receive the millions in attorneys’ fees that can be awarded as class counsel when forced to represent employees on an individual basis.

Are There Any Downsides to Using an Arbitration Agreement and/or Class Action Waiver?

Sure, it is possible that mandatory arbitration agreements and class action waivers may not be a good fit for every employer or for use with every employee. Although generally viewed as a benefit to employers, private arbitration can mean that resolution of an issue with one employee does not bind or even influence the resolution of that same issue with other employees. Accordingly, some employers may want to have a court rule on the lawfulness of a particular policy or practice so that it has more certainty for future enforcement. Also, smaller companies may not see the benefit in separately litigating each employee’s dispute in a separate proceeding if the company only has a handful of employees—meaning that in some situations, addressing multi-plaintiff cases could be less expensive if the pool of employees is relatively small.

In addition, arbitration is not always less expensive than court litigation since the employer is generally required to pay its own attorneys’ fees as well as most of the arbitration and arbitrator fees. There is also criticism and skepticism leveled at arbitration, on the theory that arbitrators will not grant motions to dismiss or summary judgment motions, or may attempt to “split the baby” rather than making tough decisions in favor of employers. Finally, a remote but possible scenario in a tight labor market is that key employees may refuse to agree to these mandatory agreements resulting in the loss of good talent or skilled, experienced workers.

May We Make New Employees Sign a Class Action Waiver as a Condition of Employment?

Generally, yes. You may make it a condition of employment that new hires sign a mandatory arbitration agreement with a class action waiver. Read more >>

May 23, 2016

Limitations Period For Constructive-Discharge Claim Starts When Employee Gives Notice of Resignation

The Supreme Court made clear today that the filing period for a constructive-discharge claim begins to run when the employee gives notice of his or her resignation. In a 7-to-1 decision, the Court favored the five-circuit majority who recognized such timeline and rejected the Tenth Circuit’s reasoning that the clock begins to run on the date of the “last discriminatory act.” Green v. Brennan, 578 U.S. ___, (2016). Although the case involved a federal employee, the Court noted that the Equal Employment Opportunity Commission (EEOC) treats federal and private sector employee limitations periods the same so this ruling should affect constructive-discharge claims against private employers as well.

Discriminatory Act That Triggers Limitations Clock

In the case before the Court, Marvin Green, a postmaster in Colorado, claimed he was denied a promotion because of his race. A year after that matter was settled, Green filed an informal EEO charge with the Postal Service alleging that he was subjected to retaliation for his prior EEO activity due to his supervisor threatening, demeaning, and harassing him. After the Postal Service’s EEO Office completed its investigation of his allegations, he was informed he could file a formal charge, but he failed to do to.

A few months later, Green was investigated for multiple infractions, including improper handling of employee grievances, delaying the mail, and sexual harassment of a female employee. Green was placed on unpaid leave during the investigation. Federal agents quickly concluded that Green had not intentionally delayed mail, but neither Green nor his union representative was told. Instead, the Postal Service began negotiating with Green’s union representative to settle all the issues against Green, resulting in Green signing a settlement agreement in December 2009 that included giving up his postmaster position. On February 9, 2010, Green submitted his resignation which was to be effective March 31.

During that time, Green filed multiple charges with the Postal Service’s EEO Office. By regulation, federal employees must contact an equal employment opportunity officer in their agency within 45 days of “the date of the matter alleged to be discriminatory” before bringing suit under Title VII. Green’s allegations included that he had been constructively discharged by being forced to retire.

Green eventually sued the Postal Service in federal court in Denver. The district court dismissed Green’s constructive discharge claim, ruling that he had not contacted an EEO counselor about his constructive-discharge claim within 45 days of the date he signed the settlement agreement in December. On appeal to the Tenth Circuit Court of Appeals, Green argued that the 45-day limitations period did not begin to run until he announced his resignation, even though that was months after the last alleged discriminatory act against him. The Tenth Circuit disagreed with Green, ruling that the clock began to run on the date of the “last discriminatory act” giving rise to the constructive discharge, as two other circuits have held.

Limitations Period Begins When Employee Gives Notice of Resignation

On appeal to the Supreme Court, Green asserted that the statute of limitations began when he actually resigned due to constructive discharge, the act that gave rise to his cause of action, which was consistent with the rulings of numerous other Courts of Appeals. Interestingly, the Court agreed with the position taken by the Postal Service, which was different from the Tenth Circuit’s decision, ruling that the limitations period for a constructive-discharge claim begins to run when the employee gives notice of his resignation.

In an opinion written by Justice Sotomayor, the Court explained that “the ‘matter alleged to be discriminatory’ in a constructive-discharge claim necessarily includes the employee’s resignation.” The Court noted that to the “standard rule” governing statutes of limitations, the “limitations period commences when the plaintiff has a complete and present cause of action.” It means that period begins when the plaintiff “can file suit and obtain relief.” In effect, a constructive-discharge claim is like a wrongful-discharge claim which accrues only after the employee is fired. With nothing in Title VII or its regulations to the contrary, the Court therefore found that the limitations period should not begin to run until after the discharge itself.

So precisely when does an employee resign for purposes of triggering the limitations period for a constructive-discharge claim? The Court ruled that the limitations period begins on the day the employee tells his employer of his resignation, not the employee’s actual last day of work.

The Court did not decide the factual question of when Green actually gave notice of his resignation to the Postal Service, sending the matter back to the Tenth Circuit to determine that fact.

Significance of Decision for Employers

The practical effect of the Court’s ruling is to extend the period in which an employee may allege a constructive discharge beyond the limitations period for the underlying discriminatory acts that gave rise to the resignation. Hypothetically, employees who resign may be able to bootstrap any alleged discriminatory act during the course of their employment to their decision to abandon employment. In his dissent, Justice Thomas further opined that a discrimination victim may extend the limitations period indefinitely simply by waiting to resign. Yet the Court believed such concerns to be overblown, doubting that a victim of employment discrimination would continue to work under intolerable conditions only to extend the limitations period for a constructive-discharge claim. Nonetheless, even if the applicable Title VII limitation period (typically 180 or 300 days for private employers) for the underlying discrimination has passed, an employee may still have a timely claim for constructive discharge under the Court’s rule.

Time will tell if Justice Thomas’s concerns were more realistic that his colleagues believed.

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March 22, 2016

Class-Action Lawsuit Permitted To Rely On Sample Data To Determine Wages Owed

By John Husband

In the absence of actual time records, time spent by employees donning and doffing protective gear may be established by representative evidence in order to establish the employer’s liability for unpaid overtime pay in a class action lawsuit, ruled the U.S. Supreme Court today. The Court rejected the company’s argument that each employees’ wage claim varied too much to be resolved on a classwide basis. Instead, the Court upheld the class certification, sending the case back to the district court to determine how to distribute to class members the $2.9 million dollar jury award. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___ (2016).

Pay For Donning and Doffing Protective Gear

Under the Fair Labor Standards Act (FLSA), it is well established that employers must pay employees for time spent performing preliminary or postliminary activities that are “integral and indispensable” to their regular work. In the Tyson Foods case, over 3,300 pork processing employees sued, alleging that the company failed to pay them for time spent putting on and taking off required protective gear at the start and end of their work shifts and at meal periods. The employees argued that such time was “integral and indispensable” to their work and that when added to their weekly work hours, pushed them beyond 40 hours per week resulting in unpaid overtime.

Because Tyson Foods did not keep any time records for donning and doffing time, the employees presented representative evidence of the time spend on those activities, including employee testimony, video recordings of the donning and doffing process at the plant, and a study by an industrial relations expert, Dr. Kenneth Mericle. Dr. Mericle analyzed 744 videotaped observations to determine how long various donning and doffing activities took, concluding that employees in the kill department took an estimated 21.25 minutes per day while workers in the cut and retrim departments took an estimated 18 minutes per day. Using that data, another expert added that time to each employees’ recorded work time to determine how many hours each employee worked per week.

Tyson Foods argued that because the workers did not all wear the same protective gear, each individual plaintiff spent different amounts of time donning and doffing the gear. Therefore, Tyson Foods maintained that whether and to what extent it owed overtime pay to each individual employee was a question that could not be resolved on a class-action basis. Importantly, Tyson Foods did not attack the credibility of the employees’ expert or attempt to discredit the statistical evidence through its own expert, but instead opposed class certification on the basis that the individual variances of the time spent by each employee made the lawsuit too speculative for classwide recovery.

Employee-Specific Pay Inquiries Do Not Destroy Class Action

The Court determined that the employees’ use of Dr. Mericle’s representative study was permissible to establish hours worked in order to fill the evidentiary gap created by the employer’s failure to keep time records of the donning and doffing activities. The Court refused to define a broad-reaching rule about when statistical evidence may be used to establish classwide liability, stating instead that it would depend on the purpose for which the evidence was being introduced and the elements of the underlying action. It ruled it appropriate to rely on sample evidence when each class member could have relied on that sample to establish liability if he or she had brought an individual lawsuit. In the wage and hour context, if the sample data could permit a reasonable jury to find the number of hours worked in each employees’ individual action, the “sample is a permissible means of establishing the employees’ hours worked in a class action.”

The Court, in its 6-to-2 decision, refused to rule on the issue of how the jury’s $2.9 million award would need to be dispersed among the class members and how to prevent uninjured class members (i.e., those whose donning and doffing time did not result in overtime) from recovering any part of the award. In fact, Chief Justice Roberts, writing a separate concurring opinion, expressed his concern that the district court would not be able to devise an allocation method that would award damages only to those class members who suffered an actual injury. But, because the majority found that the allocation methodology issue was not before the Court, the case gets sent back to the trial court for that determination.

Litigation Tactics To Oppose Class Certification

The Court noted numerous litigation strategies by Tyson Foods that may have proved fatal to its case. First, Tyson Foods failed to move for a hearing to challenge the admissibility of the employees’ expert study by Dr. Mericle. A so-called Daubert hearing would have offered Tyson the chance to keep the representative sample out of the trial which may have eliminated the employees’ evidence of time spent donning and doffing protective gear.

Second, the Court noted that Tyson Foods did not attempt to discredit Dr. Mericle’s sample evidence through an expert of its own. By focusing its trial strategy only on attacking the class certification issue, the jury was left without any rebuttal to the employees’ experts.

Finally, Tyson Foods rejected splitting the jury trial into two phases, a liability phase and a damages phase. Instead, it insisted on a single proceeding in which damages would be calculated in the aggregate and by the jury. The jury came back with a $2.9 million award, which was half of what the employees’ sought, but still a significant award against Tyson Foods.

Blow To Businesses Defending Class Actions

Although the Court refrained from approving the use of representative data in all class-action cases, the Court’s decision makes it more difficult for employers to object to sample data when defending a class or collective action. Noting that representative data is not an appropriate means to overcome the absence of a common employer policy that applies to all class members, per its 2011 Wal-Mart Stores, Inc. v. Dukes decision, the Court allowed representative data to fill the evidentiary gap regarding hours worked where each employee worked in the same facility, did similar work, and was paid under the same policy.

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January 20, 2016

Unaccepted Settlement Offer of Complete Relief Does Not Moot Plaintiff’s Case

By Sarah Wisor

In a 6-to-3 decision, the U.S. Supreme Court decided that a plaintiff who rejects a settlement offer or an offer of judgment of complete relief may continue litigating the case. Relying on principles of contract law, the Court ruled that once a settlement offer is rejected by the plaintiff, it has no continuing effect. Because the plaintiff remains empty-handed, he may continue to pursue all available remedies in court, on both an individual basis and on behalf of a class. Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016).

Resolving Circuit Court Split on Whether Offer Moots Claim

The dilemma is this: if a defendant offers the plaintiff complete monetary and all other relief that he is entitled to recover on his claims, what is left to be decided or awarded? If there is no case or controversy, a federal court must dismiss the case as moot pursuant to Article III of the Constitution.

The Supreme Court agreed to hear this case because the Circuit Courts of Appeals did not agree on this issue. The First, Second, Fifth, Seventh, and Eleventh Circuit Courts of Appeals had previously ruled that an unaccepted offer does not render a plaintiff’s claim moot. However, the Third, Fourth, and Sixth Circuits had ruled oppositely, holding that an unaccepted offer of complete relief can moot a plaintiff’s claim.

Justice Ginsburg, writing for the majority, pointed to Justice Kagan’s words from her dissent in an earlier case: “When a plaintiff rejects such an offer – however good the terms – [the plaintiff’s] interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief.” Therefore, the Court reasoned, a case is not rendered moot by an unaccepted offer to satisfy the plaintiff’s individual claim.

Chief Justice Roberts Dissents

Chief Justice Roberts dissented, joined by Justices Scalia and Alito. (Justice Thomas concurred with the majority in its holding, but not its reasoning, writing a separate concurrence.) The dissenting justices stated that the “federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitlement to relief already there for the taking.” The dissent would have rendered the case moot on the basis that there is no case or controversy after a defendant agrees to fully redress the injury alleged by a plaintiff.

Can Defendants Still “Pick Off” Named Plaintiffs?

Settling a named plaintiff’s individual claim prior to class certification is appealing to defendants who want to avoid the greater liability and cost of a class action. While this “picking off” strategy may have been undermined, in part, by the Supreme Court’s decision, the Court did not decide whether payment of complete relief would render the case moot.

This case arose when Jose Gomez sued a marketing firm, Campbell-Ewald, for sending him text messages without his permission. Gomez filed a nationwide class action, alleging violations of the Telephone Consumer Protection Act (“TCPA”), which permits consumers to recover treble damages of $1,500 per call/text message, plus litigation costs. Gomez sought the maximum statutory damages, costs, attorney’s fees, and an injunction against Campbell-Ewald barring further unsolicited messaging.

Before Gomez could file a motion for class certification, Campbell-Ewald offered to settle Gomez’s individual claim and filed an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. Campbell-Ewald offered to pay Gomez $1,503 per unsolicited message and his court costs, but not attorney’s fees, which Campbell-Ewald argued were not available under the TCPA. Campbell-Ewald also offered to stipulate to an injunction that would bar it from sending text messages in violation of the TCPA. Gomez rejected the settlement offer and allowed the Rule 68 offer of judgment to lapse. Campbell-Ewald then sought dismissal of Gomez’s case, arguing that its offer of complete relief rendered his claim moot. The Supreme Court disagreed.

However, the Court did not decide whether the result would be different if a defendant actually deposits the full amount resolving the plaintiff’s individual claim in an account payable to the plaintiff, with the court then entering judgment in that amount. As Chief Justice Roberts stated in his dissent, the good news is that this case is limited to its facts, and that issue has been left for a future case.

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September 2, 2015

Utah Supreme Court: Misappropriation of Trade Secrets Presumes Irreparable Harm

By Bryan Benard

A Utah employer has dodged a $229,482 fee award and can continue its lawsuit against a former employee for misappropriation of company trade secrets and violation of a non-disclosure agreement. The Utah Supreme Court recently revived InnoSys, Inc.’s claims against a former engineer, Amanda Mercer, holding that the company established a prima facie case of trade secret misappropriation that gave rise to a rebuttable presumption of irreparable harm. The divided Court reversed the grant of Mercer’s summary judgment motion, allowing the company to take its claims to trial. InnoSys, Inc. v. Mercer, 2015 UT 80.

Employee Copied Sensitive Company Information to Thumb Drive and Personal Email Account

During her employment as an engineer for InnoSys, Mercer forwarded confidential company emails to her personal Gmail account. On the day that she was terminated for poor performance, Mercer copied the company’s confidential business plan onto a thumb drive.

Following her termination, Mercer filed a claim for unemployment benefits with the Utah Department of Workforce Services. After her claim was denied, she appealed, submitting a number of protected documents, including the confidential business plan and protected emails, into the administrative record. At that point, InnoSys began asking for details as to when and how she gained access to the confidential materials. Mercer then deleted all of the emails and InnoSys files. InnoSys filed a complaint in court, alleging that Mercer had breached her non-disclosure agreement (NDA), misappropriated company trade secrets in violation of the Uniform Trade Secrets Act (UTSA) and breached her fiduciary duty to the company.

Employee Changed Her Story But Still Won Judgment From Lower Court

Throughout discovery, Mercer changed her story regarding the use of her Gmail account and the timing of her acquisition of the company’s confidential business plan. Despite first claiming that she had IT’s permission to transfer company emails to her personal Gmail account, Mercer later admitted that she did not have anyone’s permission to do so. As to the business plan, Mercer initially testified in her deposition that she had copied the business plan onto a thumb drive because she had been asked to review the plan the day before her termination and was unable to access it via the company’s secure remote network. She later admitted that she copied it on the day of her termination and did not have it in her possession the day before she was fired.

Despite Mercer’s inconsistent statements regarding how she obtained the company’s confidential information, the district court ruled in Mercer’s favor on all of InnoSys’s claims. It did so after concluding that “there was no objectively reasonable basis to believe that Mercer had harmed InnoSys or was threatening to do so.” In addition to dismissing all of InnoSys’s claims against Mercer, the lower court also granted Mercer’s motion for sanctions against InnoSys and to collect attorneys’ fees as the prevailing party. The court ordered InnoSys to pay Mercer $229,481.58. InnoSys appealed.

Evidence of Harm

At the crux of the appeal was whether InnoSys needed to provide sufficient evidence of harm or threatened harm as a result of Mercer’s misappropriation and/or disclosure of company trade secrets to avoid summary judgment and proceed to trial. The lower court had found that InnoSys had not presented sufficient evidence that it had been harmed by Mercer’s admitted taking and disclosure of confidential company information and therefore, could not support its claims.

The Utah Supreme Court disagreed, holding that where a company establishes a prima facie case of misappropriation of trade secrets under the UTSA, it is entitled to a presumption of irreparable harm. The company was not required to produce evidence of financial damages as it also sought an injunction to prevent Mercer from further disclosing or using its confidential information.

The presumption of irreparable harm, as well as affirmative evidence of threatened harm, was also enough to keep alive the company’s claim for breach of the NDA. By reversing the grant of summary judgment in Mercer’s favor, the Court overturned the award of sanctions and attorneys’ fees against InnoSys.

Lessons Learned

First, put procedures in place to retain all signed employee agreements and documents. InnoSys initially could not find the NDA that Mercer had signed when her employment began. The lower court was hard on the company for that failure, and did not want to accept a copy of its standard NDA as evidence of what Mercer signed. The company eventually found the NDA signed by Mercer but the turmoil caused by its absence highlights the importance of strict record keeping for important employee agreements. Be certain to keep your signed agreements and acknowledgments in a secure location. You never know when you might need to enforce them.

Second, when employment ends for any reason, take steps to ensure that the departing employee returns all company information and property without retaining any copies. It is unclear from the opinion whether InnoSys asked Mercer for the return of any company materials when she was fired but it appears that it learned she had confidential company information after she submitted the company documents as part of her unemployment appeal. Don’t wait until after there has been a disclosure or further misappropriation but instead, proactively cut off access to company materials and seek the return of all company property. And remind departing employees of their continued obligations under confidentiality policies and NDAs.

Finally, enforce your NDAs to ensure continued protection of your company trade secrets and other proprietary information. Allowing a former employee to retain or disclose confidential information will undermine your future chances of arguing that such information is indeed a trade secret. You must continually guard that information or it will lose its protected status.

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July 13, 2015

EEOC’s Conciliation Efforts Must Be Real, Not “For Appearances Only,” After Mach Mining Decision

By Mark Wiletsky

An unsupported demand letter cannot constitute an actual attempt by the Equal Employment Opportunity Commission (EEOC) to engage in the required pre-lawsuit conciliation process, according to a federal judge in Ohio. EEOC v. OhioHealth Corp. (S.D.Ohio June 29, 2015). In one of the first cases to review the sufficiency of EEOC conciliation efforts after that review was authorized by the U.S. Supreme Court in its April Mach Mining decision, it is clear that courts are not willing to rubber stamp the EEOC’s purported conciliation efforts and will delay the lawsuit until actual conciliation takes place.

Insufficient Conciliation Efforts Often Frustrate Employers

If the EEOC finds reasonable cause to believe that employment discrimination occurred, it is required to try to eliminate the alleged discrimination through informal conference and conciliation with the employer. The goal is to get the employer to voluntarily comply with federal discrimination laws and resolve the alleged discrimination privately. In fact, the conciliation process is a necessary precondition to the EEOC filing a discrimination lawsuit against the employer. The EEOC is prohibited from suing the employer until after its conciliation efforts have failed.

At times, employers have been frustrated by a lack of real conciliation efforts, particularly in cases where the EEOC seems to prefer going to court rather than settling with the employer. The Mach Mining decision was a win for employers as it allows an employer to ask a judge to conduct a limited review of the EEOC’s conciliation efforts before a lawsuit goes forward.

EEOC’s Affidavit on Its Conciliation Efforts

The Supreme Court had explained in Mach Mining that a sworn affidavit from the EEOC describing its conciliation efforts would usually suffice to show that it had met its obligations. Many who analyzed that statement feared that an EEOC affidavit would effectively end the employer’s challenge to the sufficiency of the EEOC’s conciliation efforts, resulting in an empty judicial review. But Judge Frost’s decision out of the federal court in the Southern District of Ohio shows that is not the case.

In this case, the EEOC submitted an affidavit that stated that the EEOC had issued a reasonable cause determination letter that invited the parties to join “in reaching a just resolution of this matter” and stating that “conciliation of this matter has now begun.” The affidavit further states that over one month, the EEOC communicated with the employer, OhioHealth, including sending a conciliation proposal which was rejected. The EEOC then sent OhioHealth a final letter stating that conciliation efforts had not been successful.

OhioHealth countered the EEOC’s affidavit by providing its own declaration which stated that the EEOC had made a take-it-or-leave-it demand and failed to provide any information to back up its demand. Even though the EEOC’s determination letter had indicated that a commission representative would prepare a dollar amount that included lost wages and benefits, applicable interest and any appropriate attorney fees and costs, no such calculation was ever provided by the EEOC to OhioHealth. OhioHealth stated that it remained ready and willing to negotiate but that the EEOC instead declared that conciliation efforts had failed.

Judge Frost ruled that the EEOC’s “bookend” letters – first declaring the conciliation process open and then closed — did not constitute an actual attempt at conciliation. He wrote that without the EEOC providing the calculation of the charging party’s damages to OhioHealth, the parties could not shape their positions and the “conciliation process could have been nothing but a sham.” The judge ordered that the EEOC’s lawsuit against OhioHealth be stayed for 60 days while the EEOC engaged in good faith conciliation.

Judge Frost went on to offer a cautionary note to the EEOC. He was disturbed by the EEOC’s statements that it simply would not reach a private resolution of this matter via conciliation and that only a public resolution would be possible. He admonished the EEOC, stating that its position was “ridiculous” and defied the statutory scheme, binding case law, the court and common sense. He wrote that if the EEOC failed to engage in good faith efforts at conciliation as ordered, the court would impose all available consequences, including contempt and dismissal of the lawsuit. Pretty strong words indeed!

Lessons for Employers

Although this is only one court’s review of one conciliation process, employers should be pleased that the Mach Mining decision may have teeth, with courts taking a serious look at the actual conciliation efforts being made. If faced with a reasonable cause determination from the EEOC (and assuming you do not want to go to court), make certain to engage in conciliation by responding to the EEOC’s communications. If the EEOC makes a settlement demand, ask for the calculation of damages that supports the demand. Remain ready and willing to negotiate and document that willingness in writing. And if the EEOC files a lawsuit against you without first making real conciliation efforts, consider seeking a stay of the case by asserting that the EEOC failed to meet a condition precedent to filing the lawsuit.

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June 10, 2015

Employers Must Raise Defense of Unverified EEOC Charge or It Is Waived

By Steven M. Gutierrez

According to the Tenth Circuit Court of Appeals, verifying an EEOC charge is not a jurisdictional requirement, necessary to give the federal courts the authority to resolve the case; rather, the Court ruled that verifying an EEOC charge is a condition precedent to filing a Title VII lawsuit in federal court, which may be waived if the employer does not challenge it when first responding to the lawsuit. Gad v. Kansas State University, No. 14-3050 (10th Cir. May 27, 2015).

Verification of EEOC Charge

Title VII, the federal statute that prohibits employers from discriminating on the basis of race, color, national origin, sex or religion, requires that claimants submit a charge to the EEOC prior to filing suit in federal court. That submission must be “in writing under oath or affirmation.” EEOC regulations require that the written charge be signed and verified, which means sworn under penalty of perjury or affirmed before a notary public, an EEOC representative or another person authorized to administer oaths.

So what happens if the individual asserting discrimination does not verify his or her EEOC charge prior to filing suit? Does the employer-defendant have to raise the issue of the unverified charge, or does the lack of compliance with the verification requirement mean that the federal court lacks jurisdiction to hear the case at all?

Verification Not a Jurisdictional Prerequisite to Title VII Lawsuit

Not every defect in the administrative process defeats jurisdiction, rendering federal courts without authority to hear the case, pointed out the Court. After discussing previous U.S. Supreme Court cases that examined Title VII jurisdictional issues, the Tenth Circuit focused on four key points:

Whether a Title VII statutory requirement is jurisdictional or not depends on whether it is written within Title VII’s jurisdictional subsection – here, the verification requirement is contained in a separate provision that does not deal with jurisdiction of the district courts;
Because non-lawyers initiate Title VII processes, courts should not interpret procedural rules in a way that deprives individuals of their rights under the law – here, interpreting the verification requirement as jurisdictional might lead to inadvertent forfeiture of Title VII rights;
Verification is intended to protect employers from the burden of defending against frivolous claims or claims of which they had no notice – here, because verification remains a Title VII requirement, an employer may raise the plaintiff’s failure to satisfy the requirement as a defense, which serves to protect employers; and
Failure to verify a document as required by a federal rule should not render the document fatally defective – here, if a claimant’s failure to verify destroyed subject-matter jurisdiction, it would make the charge fatally defective by destroying a court’s ability to hear the case at all.

Based on its analysis of these four points, the Court concluded that the EEOC verification requirement is not jurisdictional.

Lack of Verification As Defense

Because verification of the EEOC charge remains a Title VII requirement, an employer defending a Title VII discrimination claim may raise a plaintiff’s failure to satisfy the requirement and seek dismissal of the case on that basis. The Court likened the verification requirement to other Title VII requirements that have been deemed non-jurisdictional, waivable defenses. For example, compliance with the statutory time limit for filing EEOC charges is prerequisite to bringing a Title VII suit in federal court that has been ruled to be subject to waiver and estoppel. Similarly, TitleVII’s application to employers with 15 or more employees has been determined to be a non-jurisdictional requirement that is waivable by an employer. Consequently, if an employer fails to raise a known verification defect during the EEOC proceeding, it likely waives the requirement and the case proceeds.

Waiver Left For Further Analysis

Because the district court in Gad had dismissed the plaintiff’s case for lack of subject-matter jurisdiction, it had not examined the issue of waiver of the defense. The Tenth Circuit noted that Gad had not argued that her employer, Kansas State University (KSU), had waived the verification requirement. (In its answer, KSU stated generally that Gad had failed to exhaust her administrative remedies but did not specifically mention her failure to verify her EEOC charge.) Instead, Gad argued only that the EEOC had waived the verification requirement, due to an EEOC investigator allegedly telling Gad that she did not need to return the signed EEOC form.

In reversing on the jurisdictional issue, the Tenth Circuit sent the case back to the district court to determine whether the verification requirement had been waived. The Court stated that despite the conclusion that an employer may waive the verification defect, it “does not necessarily follow that the EEOC can waive the requirement unilaterally.” But, the Court noted that there may be extreme circumstances where non-compliance with the verification requirement might be excused, such as negligent EEOC conduct that would mislead a reasonable layperson into thinking that he need not verify the charge. The Court refused to define the scope or parameters of a waiver rule, as that specific issue was not before the Court.

What This Case Means to You

When faced with a Title VII lawsuit, get a copy of the EEOC file at the earliest possible moment and check whether the claimant’s EEOC charge was verified. If not verified, you should seek dismissal of the proceeding on the basis that the claimant failed to verify his or her EEOC. If you choose to respond to the merits of the lawsuit ,without asserting lack of verification as a defense, you have likely waived that requirement.

It does not, however, appear that you should always raise the issue of lack of verification prior to your first response to the federal lawsuit. That is because an EEOC regulation permits “an otherwise timely filer to verify a charge after the time for filing has expired” and to cure technical defects or omissions, including failure to verify the charge. Consequently, if you point out the defect at any time prior to the claimant filing the lawsuit, the claimant will likely be able to amend their charge to correct the verification defect. But you should always raise the defense before responding to the merits of the charge of discrimination to ensure that you do not waive the defense.

Less clear, however, is the issue of an EEOC waiver of the verification requirement. Because the Court did not define the circumstances, if any, under which a claimant may argue that the EEOC did not ask for or require verification, we must wait for further guidance before knowing whether a claimant may proceed with a Title VII lawsuit even after you’ve raised the unverified charge defense.

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April 29, 2015

EEOC Conciliation Efforts Are Reviewable, Says Supreme Court

By Dustin Berger

Employers have a narrow right to seek judicial review of the Equal Employment Opportunity Commission’s (EEOC’s) statutory obligation to give an employer adequate notice of the charges against them, including the identity of the employees (or class of employees) claiming discrimination, and to engage in informal resolution of the charges. In a unanimous decision, the U.S. Supreme Court ruled that courts have the authority to review whether the EEOC has met its duty under Title VII to attempt informal resolution of alleged discriminatory practices prior to filing suit. Mach Mining, LLC v. EEOC, 575 U.S. ___ (2015).

While the scope of review is limited, it is good news for employers as it limits the EEOC’s ability to take high priority cases to court without first engaging in any discussion with the employer to remedy the alleged unlawful practices. Unfortunately, however, under the Supreme Court’s decision, the courts’ review of the EEOC’s conciliation efforts will be too limited to ensure that the EEOC makes a genuine and meaningful attempt to reach a voluntary resolution of a charge before the EEOC sues.

Title VII Mandates Informal Methods of Conciliation

Title VII, the primary federal law that prohibits employers from discriminating against individuals on the basis of race, color, sex, religion, or national origin, sets forth a procedure to be followed by the EEOC when handling a complaint of employment discrimination. In part, the law requires that when the EEOC finds reasonable cause to believe discrimination occurred, it must first attempt to eliminate the alleged unlawful practice through “informal methods of conference, conciliation, and persuasion.” The EEOC may choose which informal method it chooses to attempt resolution of the charge, and the agency ultimately retains the right to accept any proposed settlement or to sue the employer.

Letter From EEOC Without Follow-Up Was Insufficient Conciliation Effort

In the case before the Court, a female applicant filed a charge alleging that Mach Mining, LLC had refused to hire her as a coal miner because of her sex. The EEOC investigated her charge and found reasonable cause to believe that Mach Mining had discriminated against not only that applicant, but also a class of women who had similarly applied for mining jobs.

The EEOC sent Mach Mining a letter inviting both the company and the female applicant to participate in informal conciliation and stated that an EEOC representative would contact them soon. That never happened. Instead, about a year later, the EEOC sent Mach Mining a second letter stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful” and further stated that any further efforts would be “futile.” The EEOC proceeded to sue Mach Mining in federal court alleging sex discrimination in hiring.

Mach Mining asserted that the EEOC had failed to conciliate in good faith prior to filing suit, as was required by Title VII. Although the federal district court agreed with Mach Mining that it should review whether the EEOC had met its conciliation duty, the Seventh Circuit Court of Appeals overruled that decision and held that a party could not assert as a defense that the EEOC had failed to conciliate the claim as Title VII required. The Seventh Circuit explained that conciliation was solely within the EEOC’s expert judgment and that there was no workable standard that would allow judges to review that process. Furthermore, the Seventh Circuit believed that court review of conciliation would complicate Title VII lawsuits by allowing the focus of the litigation to drift from the merits of the Title VII claim to the sufficiency of the EEOC’s conciliation effort.

Although other federal appellate courts, however, have held that Title VII does allow a court to review the EEOC’s conciliation effort, there was no uniformity among the other appellate courts in what that review should entail. The Supreme Court agreed to take the Mach Mining case to resolve whether and to what extent courts may review the EEOC’s conciliation attempts.

Notice to Employer and Discussion Required

Justice Kagan, writing for a unanimous Court, first explained that courts routinely enforce compulsory prerequisites to suit in Title VII cases. Although Congress had given the EEOC wide latitude over the conciliation process, the Court refused to allow the EEOC to police itself on whether it had complied with its conciliation duty. Accordingly, it overruled the Seventh Circuit’s decision and held that courts have the authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation of discrimination charges.

The Court then turned to the proper standard of judicial review. In other words, it considered what the EEOC must show in order to meet its conciliation duty as a precondition to filing suit. The agency argued for minimal review, suggesting that its letters to Mach Mining were a sufficient attempt at conciliation. Mach Mining argued for a much deeper review, urging that the Court adopt a standard from the National Labor Relations Act that would require a negotiation in good faith over discrimination claims. The Court rejected both approaches and took a middle line.

The Court explained that judicial review was available but was limited to ensuring that the EEOC provided the employer with notice and an opportunity to discuss the matter tailored to achieving voluntary compliance. The Court stated that the EEOC must inform the employer not only about the specific allegations of discrimination, but also about which employees (or what class of employees) have suffered as a result. Ordinarily, the Court noted, the EEOC’s “reasonable cause” letter will provide this notice. Then, the EEOC must attempt to engage in some form of discussion with the employer to give the employer a chance to remedy the allegedly discriminatory practices prior to being sued. That discussion may be in written or oral form and the EEOC will retain a great deal of discretion about how to conduct its conciliation efforts and when to end them.

Evidence of the conciliation efforts may be supported or challenged through written affidavits. Ordinarily, the EEOC’s affidavit will show it has met its conciliation duty, but employers may create a factual issue through affidavits or other credible evidence that indicates that the EEOC did not provide the requisite information about the charge or attempt to engage the employer in discussion prior to filing suit. If a reviewing court finds in the employer’s favor on such a challenge, the appropriate remedy is for the court to order the EEOC to engage in conciliation.

Confidentiality of Conciliation

In reaching its decision, the Court focused in part on Title VII’s non-disclosure provision. This provision states that “[n]othing said or done during and as a part of such informal endeavors may be made public by the [EEOC], its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Mach Mining argued that this confidentiality provision meant only that the actions taken and statements made taken during conciliation could not be used as evidence of the merits of the claim. The Court rejected that argument and reiterated that the non-disclosure provision protects actions and statements made during conciliation from disclosure for any evidentiary purpose. And, the Court explained, the non-disclosure provision alone precluded the courts from engaging in any deeper inquiry into the EEOC’s actions during conciliation.

What This Means For You

As the EEOC has been aggressively pursuing employers on novel theories of discrimination, it is beneficial to have the ability to ask a court to review whether the EEOC provided proper notice of the allegedly discriminatory practice and the employees allegedly affected by it and offered the employer an effort to discuss the matter for the purpose of achieving voluntary compliance. Although this review is narrow, it is an improvement over the Seventh Circuit’s view because it gives employers a limited opportunity to hold the EEOC accountable for satisfying its statutory obligation to conciliate claims. If your organization receives a “reasonable cause” finding, be sure to track what efforts the EEOC makes to engage you in discussions to pursue voluntary compliance. If those efforts do not meet the standard announced by the Court, you can seek to compel the EEOC to make an effort compliant with its statutory obligations before it proceeds with its suit.

What the Mach Mining decision will not do, however, is allow an employer to seek the aid of a court in requiring the EEOC to make a genuine effort to achieve a voluntary resolution of a charge. For instance, the Mach Mining decision does not require the EEOC to negotiate in good faith, apprise an employer of “the smallest remedial award the EEOC would accept,” lay out the legal and factual basis for its position or any request for a remedial award, refrain from “take-it-or-leave-it” offers, or provide any particular amount of time for an employer to consider and respond to the EEOC’s position or offers. Accordingly, you are well advised to set expectations of the conciliation process at a low threshold and, to the extent you believe voluntary resolution is desirable, take the initiative in working with the EEOC after receiving a reasonable cause determination letter.

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September 23, 2014

Cheyenne Jury Awards $1,481,000+ On FMLA Retaliation Claim

By Brad Cave

The series of large verdicts for Wyoming employees seems to be marching forward. The most recent example occurred recently when a Cheyenne jury awarded over $740,000 to a trona miner after deciding that he was fired because he took FMLA leave. With liquidated damages available in an FMLA case, the Wyoming court entered judgment in an amount in excess of $1.48 million in favor of the employee. This case stands as yet another example about the importance of supervisor training and careful, well-documented and consistent decision making.

Long Term Employee With A Pain in the Neck. We first told you about this case in March of this year, when the Tenth Circuit Court of Appeals sent the case back to Wyoming for trial after reversing the trial court’s dismissal of the case. (Safety Violation or Too Much Intermittent FMLA Leave?). Here is a short recap of the facts.

Steven Smothers had been employed by Solvay Chemical for 18 years when his employment was terminated. Smothers had experienced back problems since 1994 resulting in three surgeries on his neck and other medical procedures, and an extended course of medical treatment by specialists. Over the years, Smothers took intermittent FMLA leave for his medical appointments and when he was unable to work due to the pain. The amount of FMLA leave he took did not go unnoticed. He was pressured by the production superintendent to change shifts to lessen the additional overtime cost caused by his absences, but such a change would have cost him about $7,000 per year in shift differential pay. Solvay also gave Smothers a negative rating on his performance evaluation because of his absences, and he was told that he was rejected for a promotion because of the leave.

Smothers’ Safety Rule Violation. In August 2008, Smothers and his coworkers were performing an acid wash, which Solvay did every six months to clean residual trona out of the equipment. When Smothers noticed that a damaged spool piece had caused a leak, he began to fix it without obtaining a line break permit which was required by Solvay safety rules. Smothers and a co-worker, Mahaffey, argued about whether the permit was necessary, and after Smothers removed the spool piece without first getting the permit, Mahaffey immediately reported Smothers’ actions to a supervisor.

Solvay terminated Smothers’ employment on August 28, 2008, based on a joint decision of six Solvay managers. Five of the six decision makers testified that the argument between Smothers and Mahaffey weighed heavily in the group’s decision to fire Smothers. Although the trial court originally dismissed the case, the Tenth Circuit believed that Smothers had presented enough evidence to create doubt about the real reasons for Smothers’ termination. So, the case was sent back to the trial court for trial.

What’s the Real Reason for Smothers’ termination? Like all retaliation cases, the jury in this trial was asked to decide whether Smothers was fired for a safety rule violation, as the employer contended, or because his employer retaliated against him for using intermittent FMLA leave or discriminated against him because of his disability. We don’t have a transcript of the trial, so we cannot tell you what evidence the jury heard or what facts persuaded the jury. We do know that the Tenth Circuit reasoned that the jury could disbelieve Solvay’s reasons because:

Supervisors criticized Smothers informally and in his performance evaluation for taking FMLA-protected leave, and rejected him for a promotion because of his time off;
Solvay did not give Smothers an opportunity to describe or explain his side of the argument with Mahaffey, even though the argument was a central reason for the decision to terminate Smothers’ employment;
Other Solvay employees who committed safety rule violations were not terminated.

And the Jury Returns.The jury found in favor of Smothers on his FMLA claim, and awarded Smothers the amount of $740,535 for his lost wages and benefits from the date of his termination, August 27, 2008, through the date of trial. But the potential damages don’t stop with the lost wages. Under the FMLA, the successful employee may be entitled to an additional amount equivalent to the jury’s award for liquidated damages – in other words, a penalty against the employer for the violation. As a result, the court has entered judgment against Solvay in the total amount of $1,481,070, twice the amount of the jury’s verdict, plus interest since the date of termination. The trial court declined to award Smothers any future lost wages. However, Smothers is entitled to an additional judgment for his reasonable attorneys’ fees and costs, which could add hundreds of thousands of dollars to the total.

Bottom Line. Regardless of the final number after adding prejudgment interest and attorneys’ fees, this is one of the largest judgments ever entered against a Wyoming employer. We cannot speculate about what evidence led the jury to its verdict, but we can share some lessons, with the benefit of twenty-twenty hindsight, that will help any employer avoid this kind of result:

Managers and supervisors must be trained and committed to the fact that taking FMLA leave is protected by federal law, and must not be the reason for formal criticism, denied opportunities, or informal complaining. FMLA-protected leave cannot be held against an employee for any reason whatsoever. Any comment or suggestion to the contrary can be used as evidence of pretext.
Investigations must be thorough and even-handed. While we don’t know all the evidence in this case, the jury may have heard that Solvay spent much more time asking Mahaffey about the argument with Smothers, while never asking Smothers for his side of the argument. Everybody should get the same opportunity to tell their side of the story. An inadequate investigation can be used as evidence of pretext.
Employees must be treated consistently. Smothers had evidence that other Solvay employees intentionally violated safety rules without being terminated. Employers need to mete out comparable discipline for comparable violations, or have a compelling reason why an employee gets tougher punishment.
Employers must respect long years of service. Of course, keeping a job for eighteen years does nothing to technically change the legal relationship or create any new rights or protection for the employee. But, after that length of time with a good performance record, it becomes difficult for a jury to believe that termination is an appropriate response for one incident.

Wyoming juries have delivered substantial employee verdicts over the last few years. Employers should pay attention.

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October 9, 2013

Idaho Supreme Court Changes Tack and Applies McDonnell Douglas Burden Shifting Analysis at Summary Judgment Stage

By A. Dean Bennett

Since 2008, employers defending employment claims in Idaho have faced a higher burden of proof, thanks to the Curlee v. Kootenai County Fire & Rescue decision of the Idaho Supreme Court. In that case, the Court decided that the well-known McDonnell Douglas burden shifting analysis used in employment cases did not apply at the summary judgment stage, making it more difficult for employers to get a favorable outcome without going to trial. Recently, however, the Idaho Supreme Court changed its position, deciding that the McDonnell Douglas burden shifting analysis did apply at the summary judgment stage, resolving a five-year debacle in which Idaho employers faced different burdens of proof depending on whether employment claims were litigated in state or federal court. See Hatheway v. Bd. of Regents of the Univ. of Idaho, No. 39507 (Idaho Sept. 6, 2013).

Federal Framework Applied to Age Discrimination Claim Under the Idaho Human Rights Act (IHRA)

The McDonnell Douglas burden shifting analysis has been widely used to resolve a variety of federal employment law claims since 1973. The analysis allows a plaintiff to put forth indirect evidence of discrimination to establish a prima facie case. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer’s actions. If the employer provides such reason, the burden of production then swings back to the plaintiff to show that the proffered reason is in fact pretext for unlawful discrimination. At all times, the plaintiff bears the burden of persuasion, meaning the plaintiff must convince the judge or jury that his or her position is correct.

Many state courts have adopted the McDonnell Douglas burden shifting analysis when adjudicating employment claims brought under analogous state laws. In Curlee, the Idaho Supreme Court appeared to adopt the McDonnell Douglas analysis, but went on to rule that the analysis explicitly governed the burden of persuasion at tria, and did not apply at the summary judgment stage.

The Hatheway decision appears to change that. Without specifically mentioning or overruling its Curlee decision, the Court applied the McDonnell Douglas burden shifting analysis at the summary judgment stage of Hatheway’s IHRA discrimination claims against the University of Idaho. The Court reiterated that federal law guides the interpretation of the IHRA and applied the same degree of proof and standards to an IHRA age discrimination claim as is used to analyze discrimination claims under the federal Age Discrimination in Employment Act.

Why Employers Should Care

If this all sounds like legal mumbo-jumbo, let’s put it in practical, real-life terms. Employers want to get employment claims dismissed at the earliest possible stage for numerous reasons, including avoiding expensive litigation, disruption to their operations and unfavorable publicity. Following the 2008 Curlee decision, Idaho employers had to prove more of their case early on, making it difficult to get a favorable judgment prior to trial. This prolonged meritless cases and cost employers more in legal fees and litigation-related expenses. Now, with the application of the traditional burden shifting analysis at the summary judgment stage, employers facing employment claims in Idaho state courts will have a better chance of getting employment claims dismissed earlier in the legal process with fewer cases proceeding to trial.

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.