Tag Archives: Holland & Hart

May 6, 2014

Separation Agreements Targeted By EEOC Again

The Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit seeking to stop a Colorado employer from using its form separation and release agreement and to allow employees who have signed the form agreement to file charges of discrimination and participate in EEOC and state agency fair employment investigations. In its federal court complaint, the EEOC alleges that CollegeAmerica Denver violated the Age Discrimination in Employment Act (ADEA) by conditioning employees’ receipt of severance benefits on signing a separation and release agreement which, according to the EEOC, chills and interferes with the employees’ rights to file charges and/or cooperate with the EEOC and state fair employment practice agencies.

As we wrote on this blog earlier, the EEOC has been scrutinizing employers’ separation agreements. This is the second such lawsuit challenging language in the separation agreements that does not permit the filing of discrimination or retaliation charges with the EEOC or other government agencies. As in the EEOC’s earlier complaint against a national pharmacy, the recent complaint against CollegeAmerica Denver targets numerous provisions in the separation agreement, including the release of claims, a non-disparagement clause and provisions in which the employee represents that he/she has not filed any claims, has disclosed to the company all matters of non-compliance and will continue to cooperate with and assist the company with any investigation or litigation.

Many of the targeted provisions are standard clauses in form separation agreements. Although it remains to be seen whether the courts will agree with the EEOC’s claims, it is always a good idea for organizations to review their agreements and ensure they do not raise any red flags for the EEOC while still protecting the company from future payouts for employment-related claims. We will continue to provide updates as new developments arise.

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June 22, 2012

NLRB’s New Website

The U.S. Department of Labor received much fanfare when it rolled out its new timesheet app. In its news release of 2011 (http://www.dol.gov/opa/media/press/whd/WHD20110686.htm), DOL indicated that it believed the application would ensure that workers received the wages to which they were entitled.

Not to be outdone, although not as an application, the National Labor Relations Board announced that it has launched a new interactive website to describe the rights of employees to engage in protected concerted activity under Section 7 of the National Labor Relations Act. The webpage can be found at: http://www.nlrb.gov/concerted-activity.

You will see that the NLRB details numerous case examples where it found the conduct of employers to violate the act. The interactive map serves to lead the reader to the detail of a case that provides factual detail about the violation. This is just another example of how the social media network can be used as a public relations effort to justify an agency's public purpose and to inform employees of their rights.

For more information on the NLRB or other traditional labor relations questions, feel free to send a comment or reach me directly.

Steven M. Gutierrez

June 7, 2012

Last-Chance Agreements — Employer beware!

The EEOC, in its recent press release (http://www.eeoc.gov/eeoc/newsroom/release/5-29-12.cfm) of May 29, 2012, announces a rare victory on summary judgment in what could be a bad trend for employers. In the underlying case of EEOC v. Cognis Corporation, a foreign multinational corporation, the federal judge ruled that the company retaliated against an employee for refusing to waive his rights to file a discrimination charge, both for past conduct and prospective conduct.

The employee, as a condition of continued employment, was asked to sign a last-chance agreement that prohibited him from filing a discrimination charge. According to the EEOC, Cognis conditioned the employment on the execution of the last chance agreement and when the employee refused to be bound by that agreement he was fired. As the Court noted in its opinion, it is not often that an employee is granted summary judgment on a Title VII retaliation claim.

The outcome here is problematic for two reasons. First, in most cases there is often a fact issue over the stated motivation for the adverse action taken by the employer because the motivation for the underlying decision is almost always in dispute; thus, there is a necessary question of fact that would defeat a summary judgment. Second, the Court’s willingness to discount the fact that had the employee not executed the last-chance agreement in the first instance he would have been terminated for a legitimate and non-discriminatory reason – poor performance – is worrisome. In rejecting Cognis’s argument on this point, the Court reasoned that even if it credited Cognis’s argument; it was the employee’s revocation of the last-chance agreement that constituted an adverse action, an act that might dissuade a reasonable worker from making or supporting a charge of discrimination. (See Opinion). This reasoning, of course, doesn’t adequately address the fact that the worker essentially was given consideration to remain employed under the last-change agreement.

What is clear from the Court holding in Cognis is the fact that the last-chance agreement is said to have threatened termination for undertaking future protected activity, which the Court says satisfies one element of the prima facie case of retaliation – a preemptive retaliatory act. Now, all that remains for the Court is a determination of damages. If the Cognis last-chance agreement had not included this prospective provision, I wonder how the case would have turned.

This holding is sure to motivate the EEOC to seek out similar cases of this kind. The EEOC concludes its release by indicating that “[f]iling EEOC charges is a fundamental right of American employees, and this agency always stands ready to protect that right.” EEOC’s Chicago District Director John Rowe further states, “This court’s opinion should cause employers to remember that seeking to dissuade employees from exercising that right is not only bad policy, it’s a violation of federal law which can give rise to very substantial liability.”

Despite the Court’s finding and the threats by the EEOC, this author maintains that narrowly crafted last-chance agreements are often useful to employers, both to ensure employees understand that future satisfactory performance is demanded and to give the employee fair opportunity to improve his/her conduct.

For more information contact Steven M. Gutierrez.

May 15, 2012

National Labor Relations Board Election Rule Invalidated

A federal judge has invalidated the "ambush election" rule by the National Labor Relations Board ("NLRB"). Brian Mumaugh and Brad Williams summarized the decision by Judge James E. Boasberg of the United States District Court for the District of Columbia and its impact on employers in a post, which is available on Holland & Hart's website by clicking here.

April 17, 2012

NLRB Notice-Posting Requirement Indefinitely Postponed

Brian M. Mumaugh and Bradford J. Williams have been following the recent developments regarding the rule by the National Labor Relations Board, which required most employers to post a statement of rights under the National Labor Relations Act. Today the D.C. Circuit granted an emergency motion for relief, which had the effect of enjoining enforcement of the rule. More information about the D.C. Circuit's ruling and its effect on employers is available by visiting the Colorado Employment Law Blog or clicking here.

March 23, 2012

Hiring and Social Media: Beware

By Mark Wiletsky

Should you require prospective employees to provide you with access to their Facebook page and other social media accounts, as a condition of being considered for the job? Some public agencies apparently are doing so. But Richard Blumenthal, a Democratic senator from Connecticut, is writing a bill to prohibit the practice. (Not surprisingly, you can find more information about his proposed bill by visiting his Facebook page: http://www.facebook.com/dickblumenthal). Relying on social media for hiring decisions can be risky, but it happens. People Google a candidate’s name, check LinkedIn profiles, browse a Facebook page, or surf the web to see if they can learn some information about the candidate. It’s so easy to do, and there is so much information about people on the web that it is hard to resist. The problem is that the information on the Internet may or may not be relevant to the job. The information also might disclose protected characteristics that you would not otherwise know from simply reviewing a job application (e.g., a person’s race, a disability, etc.). My own thought is that for most private employers, it is not a good idea to require candidates to turn over passwords to their social media accounts. Regardless of whether the candidate agrees to do so, it is clearly not a voluntary decision, and it raises a host of potential problems for private employers, beyond even the typical problem of not hiring someone due to a protected characteristic, e.g., what happens if someone at the company loses the password, abuses it, or protects it but is later accused of being responsible for hacking into the account? The law in this area continues to evolve, but I would avoid becoming a “test case” for having gone too far.

February 23, 2012

EEOC’s New Strategic Plan

Wow! The U.S. Equal Employment Opportunity Commission approved a new strategic plan on February 22, 2012.

In summary, the four-year strategic plan, adopted by a 4-1 vote, will focus on efforts to stop and remedy unlawful employment discrimination as a core mission. Commissioner Constance Barker noted that the plan’s focus will emphasize enforcement and litigation rather than education and outreach, which she believed was contrary to the EEOC’s legislative focus.

Perhaps the most dangerous component of the new plan will be the EEOC objective to increase the number of systemic discrimination cases it handles. These cases are focused on pattern or practice, policy, or class cases where the alleged discrimination has a broad impact on an industry. Systemic cases are also exceedingly expensive to defend. The EEOC will work over the next months to create the framework to “inform, justify and support the quantitative and qualitative performance measures throughout the plan.”

Fasten your seatbelts, it's going to be a bumpy night!

You can find the announcement at: http://www.eeoc.gov/eeoc/newsroom/release/2-22-12.cfm

For more information, contact Steven M. Gutierrez.

October 6, 2011

NLRB Postpones Posting Rule

Good news. The NLRB (National Labor Relations Board) has postponed the effective date on the private business posting rule that informs workers about their right to form a union. The Board indicated on Wednesday that there has been too much confusion over which business are covered under the rule. For a good summary of the posting rule from my partner Jeff Johnson click on this link: http://www.hollandhart.com/newsitem.cfm?ID=1873

For more information, feel free to reach out.

Steven M. Gutierrez

March 16, 2011

Hiring Mistakes

Over the years, I have heard a familiar theme from clients who face lawsuits filed by former employees. Many have expressed to me that the biggest mistake made was hiring the employee in the first place. While this may be a true expression of a client's feelings, usually there are a lot of mistakes that were made during the tenure of the employee. Nevertheless, I have looked at the hiring process in a number of cases. I believe with greater focus, a business can increase the likelihood of success in hiring by being aware of certain mistakes. Recently, my colleague Joe Neguse and I did a webinar for HospitalityLawyer.com. An article summarizing that presentation, authored by Patrick Mayock from HotelNewsNow.com, can be found by following this link: http://www.hotelnewsnow.com/Articles.aspx/5150/9-hotel-hiring-mistakes-and-how-to-avoid-them

For more information, feel free to reach out to me Steven M. Gutierrez or Joseph D. Neguse

March 16, 2011

Holland & Hart Attorneys Gutierrez and Neguse Featured on HotelNewsNow.com

Holland & Hart attorneys Steven Gutierrez and Joseph Neguse recently presented at a webinar sponsored by Hospitalitylawyer.com regarding mistakes made in the hiring process by the hotel industry.

A summary of their presentation is featured in an article written by Patrick Maycock on the website HotelNewsNow.com. A link to the article is available by clicking on 9 hotel hiring mistakes (and how to avoid them). Although the presentation focused on the hotel industry, we believe that the hiring mistakes featured in Mr. Maycock's article are applicable to employers in any industry.

More information about Holland & Hart's labor and employment group is available here.