Administrative Remedies in Discrimination Claims

By Matthew Dunning

Earlier this week the United States Supreme Court issued its unanimous opinion in Fort Bend County, Texas v. Davis, holding that a plaintiff’s failure to exhaust administrative remedies does not necessarily prevent the person from pursuing employment discrimination claims in court. In a charge filed with the federal Equal Employment Opportunity Commission (“EEOC”), the plaintiff in the case alleged that she was subjected to sexual harassment and retaliation for complaining about that harassment. She was subsequently fired for missing work to attend church services, and claimed that the termination was based on religious discrimination. However, she did not formally amend her EEOC charge to allege religious discrimination, opening the possibility that she had failed to exhaust her administrative remedies.

The plaintiff then filed a lawsuit in federal court, and claimed that she was subject to wrongful discharge based on unlawful harassment, retaliation and religious discrimination. The defendant initially defended the case without raising the failure to exhaust defense, and it was not until years later that the defendant filed a motion to dismiss.  The Court affirmed the finding of the lower appeals court that the motion to dismiss was untimely and should have been raised earlier in the case. This case has now been in litigation for 7 years, and is being sent back to the trial court for further proceedings.

In Nebraska, there is a statute that allows an aggrieved employee to go directly to court without filing a charge of discrimination with the Nebraska Equal Opportunity Commission (“NEOC”). Plaintiffs lawyers do not typically utilize this statute because remedies available under state law do not include punitive damages, which are available under federal law.  In addition, the lawyers appreciate the NEOC/EEOC process because it can lead to the discovery of information regarding an employer’s defenses, which the attorney can then utilize to develop the case in court.

When facing claims of discrimination, whether the employee is currently employed, or has already been terminated, employers should carefully consider the status and details of the allegations at each stage of the process, and identify the procedural requirements that may apply. For instance, if the person complaining is still an employee, the employer must consistently apply the applicable policies, typically included in an employee handbook. Failure to properly investigate and, if necessary, remediate a complaint of discrimination may, in and of itself, be considered evidence of unlawful discrimination.

Once an employee files a formal charge with the NEOC or EOC, or files litigation, the employer should carefully review all the applicable facts, particularly the timing of the allegations, and work with legal counsel to determine if there are any procedural or other irregularities to raise as defenses.

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New Department of Labor proposed rule addressing calculation of employee’s regular rate of pay

For the first time in 50 years, the Department of Labor is proposing a rule to address the calculation of an employee’s regular rate of pay; an employee’s regular rate is used to determine the applicable overtime rate, and the calculation of the regular rate can be an issue in DOL audits, and litigation.

The DOL’s proposed rule includes clarification that the following forms of compensation are not required to be included in the regular rate:

the cost of providing wellness programs

payments for unused paid leave

reimbursed expenses that are not “solely” for the employer’s benefit
certain reimbursed travel expenses

Employers will want to take this opportunity to review existing pay practices, and determine if changes can be made.

Citing Third Party Disclosure, Court Rules Attorney-Client Privilege does not Protect Certain Emails

Communications between attorneys and their clients are generally thought to be confidential under the protection of attorney-client privilege and work product doctrine.  On May 6, 2019, however, the United States District Court Southern District of New York ruled that attorney-client communications, in the form of emails, shared with a public relations firm were neither privileged nor protected by attorney work-product doctrine. In the trademark case of Universal Standard Inc. v. Target Corp., S.D.N.Y., No. 18 Civ. 6042, 5/6/19, Magistrate Judge Gabriel W. Gorenstein demonstrated the narrowness of circumstances in which a company can assert privilege after sharing information with third parties. The court held that since the PR firm hired by Universal Standard was not necessary to the emails between Universal Standard and its attorneys, was not an agent of the company, and was not hired to aid in legal tasks, privilege and work product did not apply to the communications.

 

Universal Standard creates women’s apparel with “size-inclusive” clothing brands and in 2018 brought suit against Target alleging that Target’s “Universal Thread” line of women’s clothing willfully infringed upon its trademark.  During a deposition for the case, Target’s attorney questioned one of Universal Standard’s witnesses about the email chains between Universal Standard, their PR firm, BrandLink, and their attorneys.  Universal Standard objected that the emails were privileged.

 

The court ruled the emails aren’t protected by attorney-client privilege as disclosure to a third party generally eliminates that privilege.  While Universal Standard argued three separate exceptions applied, the court disagreed with their conclusions:

 

  1. BrandLink was not necessary to the understanding of facts between attorney and client: The court said the emails in question involved the public relations strategy relating to the lawsuit; which could have been relayed directly to the attorneys alone to invoke privilege.
  2. BrandLink was not a “functional equivalent” of an employee or agent of Universal Standard: The court cited that BrandLink did not represent the company to third parties, maintain an office at the company, nor seek legal advice from Universal Standard’s counsel, failing the “functional equivalent” standard.
  3. BrandLink was not hired to complete legal tasks: The court noted a distinction regarding privilege in that there is a difference between when a client hires a third party versus when an attorney hires a third party to implement a legal strategy.  As BrandLink was hired for business purposes, the court held this exception did not apply.

 

The Court also rejected Universal Standard’s for work product doctrine protection as “conclusory” when they stated all the emails were created in anticipation of litigation and reflected the opinions of their counsel, as these statements were confined to a single sentence, and, as the court stated, a mere recital of the law.

 

Thus, when communicating with an attorney and the utilizing the convenience of email, it is important to be diligent on who you are including in your communications and what necessity they bring to the privileged conversation.

Observations on LB400

LB400 was introduced in the Nebraska Unicameral, in January of this year to raise the minimum wage of tip earners.  The current minimum wage in Nebraska for tip earners is $2.13 an hour with restaurants ensuring tipped staff obtain at least $9.00 per hour combined standard wage and tips.  The bill was to raise the minimum wage to $4.50 an hour, without indexing the wage to the regular minimum wage.

The bill includes raises the following questions to assure compliance with wage laws:

  1. Are the restaurants actually ensuring that the employees receive the $9.00 an hour combined standard wage plus tips or are they “gaming” the system to ensure more profits for the company?
  2. Can the employees genuinely rely on the tips of the patrons?
  3. Can “standard tips” accurately be reflected in the $9.00 per hour combined minimum standard wage plus tip?

As business owners, employers should consider reviewing current pay policies, including the often-used practice of tip pooling and/or tip splitting, in order to remain in compliance. Another compliance approach to consider would be the modification and reclassification of employees to non-tipped personnel.

 

https://trackbill.com/bill/nebraska-legislative-bill-400-change-the-minimum-wage-for-persons-compensated-by-way-of-gratuities/1636386/

 

The legislation is not finalized so there will be updates on the status of this bill.

Hair Based Discrimination

Expansion of protected classes to include hair in New York City; given the examples cited in the article, it seems that this sort of discrimination is already largely covered by existing law prohibiting discrimination on the basis of race. Employers in Nebraska and elsewhere should be aware of those issues, and establish clear policies regarding dress code and grooming standards, with uniform and consistent enforcement.

https://www.linkedin.com/feed/update/urn:li:activity:6503319813669167104

FCRA Disclosure Requirements

Two federal court decisions out of California should serve as reminders to employers that the requirements of the Fair Credit Reporting Act will be strictly interpreted and applied. In a class action against Walmart, and also in a Ninth Circuit Court of Appeals decision, FCRA disclosure requirements were at issue; the Ninth Circuit’s holding reaffirms the FCRA’s requirement that disclosures be in a standalone document, without including additional state-mandated disclosures. The Walmart case allowed claims that its disclosures were similarly faulty to move forward as a class action. To avoid potential liability, employers would do well to closely adhere to the disclosure requirements, as required by the explicit language of the Act; guidance on the issue can be found at the FTC’s website: https://lnkd.in/gtVY2Jq