Layoffs Without Lawsuits: Avoiding Litigation When Terminating Employees

Managers who approach their employees carefully in the wake of economic job eliminations may avoid legal problems later.

Phillip M. Perry, Staff Editor, Area Development  (Apr/May 09)

With the recession wreaking havoc on revenues, business owners from coast to coast are reducing employment rolls to control operating costs. Too often, though, terminations are carried out in ways that spark costly litigation.

“Given the increasing number of layoffs in recent months, there is bound to be an uptick in wrongful discharge lawsuits,” says Joseph P. Harkins, a partner in the Washington, D.C., office of San Francisco-based Littler Mendelson, the nation’s largest employment law firm representing management.

Lawsuits increase during economic downturns for three reasons. First, the fact that more people are being let go increases the pool of possible litigants. Second, a growing array of federal and state laws protects workers from discrimination during termination, providing the grounds for lawsuits. Third, many attorneys are themselves looking for more business, and thus are willing to represent plaintiffs on a contingency basis. That encourages litigation by terminated workers who see courtroom awards as valid replacements for lost paychecks.

Avoid Litigation
Discharged employees may bring two types of lawsuits. The first alleges a straightforward legal failure: Perhaps the employer has ignored a written or oral employment contract, or violated public policy in firing people for undertaking jury duty or some other federal or state mandate.

Discrimination lawsuits are more common in a recession, because many layoffs present the appearance of bias against protected groups even when no such unfairness was intended. The plaintiffs assert that terminations were influenced by age, sex, race, religion, national origin, or disability. Such cases require more time and cost to defend – and employers can be hit with huge punitive damages. You can avoid this trap by defining the goal of your work force reduction, then assuring your terminations support that goal.

“Probably the most important thing is to set an objective,” says Harkins. Perhaps your goal is a straight forward downsizing: “Do you need to reduce head count and control costs?” he says. “In that case, you need to do a ranking of all of your employees, keeping the best and laying off the worst.”

Or your goal might be more strategic. “Perhaps you decide you are not going to provide a certain service or line anymore, and focus instead on your core business,” says Harkins. “In this case, you can decide who you must let go because they do not have the skills to support your new strategy.”

Probably the most common mistake is to mix the two objectives or not have any goal beyond some panicky cost control, according to Harkins. In such cases, it’s too easy to terminate individuals without sufficient thought and without adequate documentation supporting the criteria used.

That carries strategic and legal risks: Six months down the road, you may realize you let the wrong people go. And it opens the door to charges by discharged individuals that your real goal was discrimination: You wanted to rid your workplace of individuals with characteristics protected by federal and state law.

It’s wise, then, to spend some time defining where you want to be in a year or two. “Do a strategic assessment of your business to determine longer-term opportunities you want to develop,” says Ian Jacobsen, president of Jacobsen Consulting Group in Sunnyvale, California. “Let’s say that you see a potential market for additional avenues of business when conditions improve. You will probably want to keep the people who are best for helping you grow your business in those areas as you ride out the recession.”

Keep Records
Keep careful records that show how your terminations support your goal. “You definitely want to document your reasons at the time of discharge,” says Harkins. “If you do get hit with a wrongful discharge suit, you can say `Employee A had a better set of skills than Employee B for the service we were planning to focus on in the future.’ Or, `I needed people who had two skills and Employee B was less versatile.’ Documenting this thought process at the time will make your case more credible later.”

If your goal in reducing your work force was an overall savings, this should also be documented. “What is important is your decision process at the time of the layoff,” says Harkins. “Documenting your good faith reason will help assure it remains the focus in any lawsuit.”

Once you have decided whom to let go, assess the makeup of the departing group. Does it have a higher proportion of individuals with protected characteristics than your surviving work force? If so, your layoff would seem to have what attorneys call a “disparate impact” and that can be evidence of discrimination. “If there’s no disparate impact and no appearance of discrimination, your group being laid off should look like the group in the work force,” says Harkins. Disparate impact can be harmful not only in terms of costly litigation but also in the diminished morale of people left behind and even in tarnished customer relations following news reports of discrimination lawsuits.

Treat People Well
Treating people well during termination is the right thing to do from the human point of view. It’s also smart legally. Fact is, people who are angry about how they were treated on the way out the door often sue their ex-employers.

“Discharged employees often go to lawyers because something in the circumstances of their termination made them angry or seemed unfair,” says John J. Myers, chair of the labor and employment law department at Eckert Seamans Cherin & Mellott in Pittsburgh, Pennsylvania. “Treat the departing employees with dignity. I also counsel to give employees complete explanations as to why you are terminating, as opposed to staying vague and elusive. Hopefully they will then understand why you are doing what you have done, and that reduces the likelihood of going to court.”

Indeed, attorneys suggest going the extra mile and taking a proactive stance in helping employees move on. Consider arranging for outplacement to get people focused on the future and getting on with their lives. People left unassisted are more likely to file a lawsuit as they brood on what happened.

Offer Severance Agreements
One way to help ensure you do not become the target of wrongful discharge lawsuits is to ask departing employees to sign documents that release your firm of any liability in exchange for a severance packages.

“Many times RIFs (reductions in force) are done without severance packages and corresponding releases,” says Harkins. “This is usually a mistake because most people are not looking for huge packages. They just want some transition money to take care of their families until they come up with something in a few months. Provide some transition pay and you are less likely to be the target of litigation.”

One approach is to offer “notice pay,” a week or two until the next payroll date, with no need for the employee to report to work. “If an employer can afford it, and even for a small amount of money, it is usually worthwhile to obtain a general release of legal claims,” says Harkins. “Legal consideration to support a valid release is anything of value that the employer is not otherwise required to provide. So even a day’s pay can justify a release of any discrimination or other wrongful discharge claims.”

After the Layoffs
If you’re facing the necessity of downsizing your own work force, you’re probably feeling a good deal of stress. No one wants to make a decision that will disrupt the lives of so many people, especially in today’s environment where jobs are hard to come by.

Layoffs can also affect the morale of people left behind. “Employees retained in a layoff are apt to feel `survivor guilt,’ especially if they don’t know why they were retained when their colleagues were let go,” says Jacobsen. “That’s why it is so important to explain to them the reasons that they were kept, and what they will be doing in the new, `pruned’ organization. In all probability, their jobs will change some to cover part of the work of the people who were let go. They need to understand that not all of the work that was done prior to the layoff will be done in the post-layoff business.”

To manage survivor guilt, meet weekly with the retained employees for the first month or more to find out how things are going for them. What’s working and what’s not? By solving or helping them solve problems they are experiencing post-layoff, you will ease their stress and build your relationship and credibility with them.

“One way to reduce survivor guilt is to get the remaining employees involved in the mission of cost cutting, or thinking of more efficient ways to do things,” says Harkins. “People often work off stress by feeling they are getting the business back in order.”

Also, try to stay in touch with the group that has departed. “The knee-jerk reaction is to not have your employees stay in contact with laid off people,” says Harkins. “That can be counterproductive because some of those people might reapply or they might be able to recommend someone when business picks up. You never want to burn a bridge in anything that deals with human resources.”

Stay Safe
Recessions happen. They are a fact of business life. Fortunately, they don’t last forever. You want to respond to the recession in a way that builds bridges to the future. That means conducting a layoff ethically and professionally. “Unless you plan to close your business, you want to maintain a reputation as a good place to work,” says Jacobsen. “When you survive a recession and start hiring again you want to be able to recruit the best people. And the best people will remember how you conducted your layoff.”

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EEOC Seeks Assurance of Protections in Intersectional Sex–Age Discrimination Claim

Source: EEOC

July 25, 2019

On Tuesday, June 11, 2019, the Equal Employment Opportunity Commission (EEOC) filed an amicus curiae brief in Frappied et al. v. Affinity Gaming Black Hawk, LLC (No. 19-1063; 10th Cir.)—a case involving older casino workers who allege they were illegally terminated due to age under the Age Discrimination in Employment Act of 1967 (ADEA). Of particular note, female plaintiffs in the case additionally claimed they were unlawfully terminated due to the combination of their age (under ADEA) and gender under Title VII of the Civil Rights Act of 1964 (Title VII). In its brief, the EEOC argued that the district court erred in dismissing the older women’s Title VII claim earlier this year. The case is noteworthy in that it represents a rare instance of a cross-statute complaint invoking both the ADEA and Title VII.

Claims of discrimination that involve the combination of two or more protected classes (such as age and gender as in Frappied) have been referred to as “intersectional discrimination” by the EEOC. According to the Section 15: Race and Color Discrimination of the EEOC’s Compliance Manual:

“Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men. Likewise, Title VII protects Asian American women from discrimination based on stereotypes and assumptions about them ‘even in the absence of discrimination against Asian American men or White women.’ The law also prohibits individuals from being subjected to discrimination because of the intersection of their race and a trait covered by another EEO statute – e.g., race and disability, or race and age.”

The courts have historically referred to such intersectional discrimination claims as “sex-plus” claims (e.g., sex-plus-race), and their interpretation of Title VII as it relates to these claims is complicated and has continued to evolve over the past several decades.

In Frappied, the district court took issue with the age aspect of the sex-plus-age claim, holding that “the scope of liability under the ADEA is narrower than that under Title VII.” However, in its amicus brief, the EEOC points out that in prior cases the “plus” factor in sex-plus claims has included characteristics not protected from discrimination by Title VII or other independent federal statutes (e.g., marital status). The EEOC views the ADEA’s more limited scope as immaterial to whether a sex-plus-age claim should stand and is looking to the Court of Appeals for the Tenth Circuit to reverse the district court’s ruling.

With this filing, the EEOC has signaled its commitment to ensuring that federal courts recognize intersectional discrimination claims under both Title VII and the ADEA. Indeed, in its ADEA @ 50: State of Age Discrimination Report, the EEOC stated that it “has long recognized the theory of ‘intersectional discrimination’ under both Title VII and the ADEA” (see also the 2006 EEOC Compliance Manual). This action also comes on the heels of the Office of Federal Contract Compliance Programs (OFCCP) stating last August in Directive (DIR) 2018-05 that they “may explore the interaction of sex and race” in their regression analyses of contractor compensation data.

Employers may want to watch the outcome of Frappied closely as it could underscore a need to expand the scope of proactive EEO analyses conducted (e.g., on hiring, pay, terminations) to include various combinations of protected classes of individuals that include age. Because intersectional claims of discrimination by definition involve smaller groups of individuals, having sufficiently large samples to conduct relevant statistical analyses may pose an obstacle to both plaintiffs attempting to establish evidence of discrimination and employers looking to conduct proactive analyses. As always, we recommend that employers reach out to their legal counsel to discuss these complex issues.

By Don Lustenberger, Ph.D., Senior Consultant, and Sarah Layman, M.S., Senior Consultant at DCI Consulting Group

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Avoiding Discrimination in Layoffs or Reductions in Force (RIF)

U.S. Equal Employment Opportunity Commission


Making an Employment Decision?

Before implementing a layoff or reduction in force (RIF), review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws.

  • List the employees who would be laid off or terminated based on your layoff/RIF criteria.
  • Determine whether certain groups of employees are affected more than other groups.
    • For example, to determine whether female employees may be affected more than male employees, compare the percentage of female employees scheduled for layoff/RIF to the percentage of female employees in your workforce.
  • If certain groups of employees are affected more than other groups, determine if you can adjust your layoff/RIF selection criteria to limit the impact on those groups, while still meeting your business’s needs.
    • For example, you decide to lay off the most recently hired employees due to budget constraints. Female employees account for 30% of your workforce and 85% of the employees scheduled for layoff. Determine whether you can adjust your layoff criteria in a way that allows you to meet your financial goals while also reducing the impact on female employees. For example, you might determine whether alternative layoff criteria, such as employees’ profitability, productivity or expertise, would enable you to reach the desired financial outcome and result in the layoff of fewer female employees.

This process can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

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EEOC Launches Online Services for Inquiries, Appointments and Discrimination Charges

U.S. Equal Employment Opportunity Commission


PRESS RELEASE
11-1-17

New EEOC Public Portal Allows Online Interactions with the Agency

WASHINGTON – Today the U.S. Equal Employment Opportunity Commission (EEOC) launched an EEOC Public Portal to provide online access to individuals inquiring about discrimination.

“This secure online system makes the EEOC and an individual’s charge information available wherever and whenever it is most convenient for that individual,” said EEOC Acting Chair Victoria A. Lipnic. “It’s a giant leap forward for the EEOC in providing online services.”

The EEOC Public Portal allows individuals to submit online initial inquiries and requests for intake interviews with the agency. Initial inquiries and intake interviews are typically the first steps for individuals seeking to file a charge of discrimination with EEOC. In fiscal year 2017, the EEOC responded to over 550,000 calls to the toll-free number and more than 140,600 inquiries in field offices, reflecting the significant public demand for EEOC’s services. Handling this volume of contacts through an online system is more efficient for the public and the agency as it reduces the time and expense of paper submissions.

The new system enables individuals to digitally sign and file a charge prepared by the EEOC for them. Once an individual files a charge, he or she can use the EEOC Public Portal to provide and update contact information, agree to mediate the charge, upload documents to his or her charge file, receive documents and messages related to the charge from the agency and check on the status of his or her charge. These features are available for newly filed charges and charges that were filed on or after Jan. 1, 2016 that are in investigation or mediation.

Five EEOC offices (Charlotte, Chicago, New Orleans, Phoenix and Seattle) piloted the new system for six months. Feedback from the public and the EEOC pilot offices led to improvements in the system for this nationwide launch.

The new system does not permit individuals to file charges of discrimination online that have not been prepared by the EEOC or to file complaints of discrimination against federal agencies.

In the next few weeks, the EEOC will also provide online access to charging parties for whom the agency has an email address, who have pending charges that are currently in investigation or mediation and were filed as of Jan. 1, 2016.

Individuals who do not have online access can call 1-800-669-4000 to get basic information about how to submit an inquiry to their local EEOC office.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employ­ment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.

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Laid off? These are the legal rights that can protect you

Get some answers to your questions about employment law, wrongful termination, severance, and more.

Source: Monster

Dawn Papandrea, Monster contributorLaid off? These are the legal rights that can protect you

Understand what your legal rights are when you’ve been laid off.

In most cases when people are laid off, they are so shocked or emotional about the experience that they aren’t sure what to do, what their rights are, or if they might even have a legal basis to sue. As a result, they end up walking away, no questions asked—sometimes with severance pay, sometimes with nothing at all.

If you’ve been laid off, step one is to breathe. You have every right to feel stunned.

“Most employees start jobs and no one ever thinks about what’s going to happen in the event of termination,” says Christopher Davis, managing partner of Law Office of Christopher Q. Davis, based in New York.

So would you know what to do if your boss called you in to have the layoff talk tomorrow? Here’s what employment law experts say you should know.

What laws protect you during a layoff?

The default in virtually all employment situations is “at will” employment, says Marc Siegel, founder and managing partner of Chicago-based Siegel & Dolan, mediator, and arbitrator. “That means an employer can terminate you for any reason, or no reason at all, as long as it’s not discriminatory.”

If you’re in a protected class based on your age, sex, national origin, religion, or race, or if you have a disability, and you can prove that you were laid off because of it, then you might have a case.

Without getting too deep into legal jargon, here’s a quick look at some of the federal discrimination laws that cover workers.

If you’re over 40: The Age Discrimination in Employment Act (ADEA) of 1967 protects workers 40 and older. In addition, if you’re in that age category and you’re part of a group layoff, you’re also protected by the Older Workers Benefit Protection Act. This gives you 21 days to consider any severance offer, and another seven days to revoke your agreement.

If you’re part of a minority group: Title VII of the Civil Rights Act of 1964 prohibits companies from making employment decisions based on race/color, religion, sex, pregnancy or national origin.

If you have a disability: The Americans with Disability Act (ADA) of 1990 prohibits employment discrimination against those with disabilities.

Just suspecting your affiliation with one of these groups prompted your layoff isn’t enough to bring a claim, says Davis. “You have to prove ‘disparate impact discrimination,’ which involves some quick math. Has the company put a larger number of members of a protected category into the group of people being terminated?” says Davis.  

Other potentially illegal reasons for a layoff include:

If the employer violates public policy: For example, if an employee files a workman’s compensation claim or reports an illegal or unethical behavior, and then a couple of months later is terminated, that worker might be able to prove that the layoff was done in retaliation, says Siegel.

Read up on federal whistleblower laws, as well as those in your state, if you find yourself in this situation, says Davis.

If you have to take care of a family member who is ill: The Family Medical Leave Act (FMLA) entitles eligible employees to take up to 12 work weeks unpaid (26 if the care is for a service member), job-protected leave for specified family and medical reasons with continuation of group health insurance coverage.

If your employer is large: The Worker Adjustment and Retraining Notification (WARN) Act sets rules for notifying workers about large layoffs and plant closures. You must receive a written notice 60 days before the date of a mass layoff. If not, you may be able to seek damages for back pay and benefits for up to 60 days. In some states like New York, employers have to give 90 days notice.

If you think you were laid off because of any of the above reasons, consult with a local attorney to help you decide if legal action is warranted. You may also contact the Equal Opportunity Employment Commission (EEOC) to file a complaint.

What can you expect in severance?

Questions of legality aside, you might be wondering if you’re entitled to severance, and if it’s worth negotiating for a better package. First off, know that an employer is not obligated to give severance at all. “Some companies offer severance as a matter of company policy,” says Davis, “but it is discretionary.”

In larger companies, severance plans may be based on a set, standard formula, says Siegel. “Generally, you’ll see offers of one to four weeks of pay per year of service, and it’s capped at a certain number of weeks,” he adds.

The other aspect of the severance besides what you’ll be paid is what rights you’re giving up. “If you’re getting a severance, it could be that the company is trying to discourage you from consulting with a lawyer,” says Davis. Once you sign the agreement, you give up your right to sue. “That’s valuable to a company because they don’t want to have to pay lawyers or pay settlements or judgments.”

Also, be very careful about covenants that follow you, says Siegel. “If there are any post-employment restrictions about soliciting customers or working for competitors, sometimes the amounts they’re paying you might not be worth it,” he says.

Similar to a salary negotiation, you don’t necessarily have to take the first offer when you’re handed a severance. “There could be room to negotiate your severance. Every agreement isn’t just a goodwill gesture,” says Davis. “Companies do pay out more if there are legitimate legal claims, so always run it by a lawyer.”

In fact, coming away with a better severance is often a person’s best recourse rather than suing, since doing the latter can take years and require a lot of legal fees.

Under what circumstances should you sue? 

If you think you have a good case, you could go ahead and sue your employer, but bear in mind that it’s an arduous process, says Siegel. Ask yourself these questions:

What type of claim do I have, and is it worth fighting?

Of all the potential claims, Siegel finds that Family Medical Leave cases tend to be easiest to win, assuming you have good evidence. “Everyone knows someone who’s been sick, so juries are more sympathetic,” he says. In addition, the standard of proof in such cases is more lenient than in other cases.

Take age discrimination cases, for instance. Those require the higher “but for” standard of proof, says Siegel. In other words, you have to prove that “but for” your age, you would not have been terminated. Also, in age cases, even if you do win, don’t expect large payouts. The ADEA doesn’t allow for emotional distress damages or punitive damages, says Siegel.

With racial and sexual discrimination cases, the burden of proof is slightly less stringent—you just have to show race/sex was one factor in the discharge, says Siegel. The challenge is trying to get a unanimous jury to agree. If you can, though, you may win compensatory and punitive damages (which are allowed), says Siegel, especially in states like California where damages are uncapped.

How big of a layoff is it?

The more people that are being let go, the harder it’s going to be hard to show you were being targeted unless you have some pretty good evidence,” says Siegel. Unfortunately, he adds, sometimes companies use a mass layoff to let a ‘red flag’ person go—whether it’s a 65-year-old, a member of a minority group who is likely to claim discrimination, or a person who filed a sexual harassment complaint. “When they are let go with everyone else, it’s much harder to prove discrimination,” says Siegel.

Where do you live?

Depending on your state’s laws, you might have an easier time of winning a case. Siegel says generally speaking, states such as Illinois, New York, and California have stronger employee protections. Read up on your state’s labor laws via the Department of Labor’s website.

Ultimately, consulting with an attorney can help you determine whether your layoff appears to be legal or illegal, but only you can determine whether the cost of going after your former employer is worth the time and effort.

Now that you have a better understanding of your rights, should the day come when you’re laid off, you won’t be so caught off guard and will be in a better position to negotiate. If you think you might have a legal claim, be sure to work with an employment lawyer to help you walk away with a better severance or, if warranted, pursue a lawsuit.

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U.S. economy expected to lose 4.6 million travel-related jobs this year from coronavirus fallout

Total spending on travel in the U.S. is expected to drop by $355 billion for the year, or 31 percent — more than six times the impact of the Sept. 11, 2001, terrorist attacks

Source: The Washington Post

A cleaning cart at Flamingo Hotel and Casino in Las Vegas on March 13. (Bridget Bennett/AFP/Getty Images)
A cleaning cart at Flamingo Hotel and Casino in Las Vegas on March 13. (Bridget Bennett/AFP/Getty Images)

By Rachel Siegel 

March 17, 2020

The United States is expected to lose 4.6 million travel-related jobs this year as the coronavirus outbreak levies an $809 billion blow to the economy, according to startling projections released Tuesday by the U.S. Travel Association.

Furthermore, 4 million jobs have been eliminated already or are on the verge of being lost in the next few weeks, the American Hotel & Lodging Association said. In some of the hardest-hit markets — such as Seattle, San Francisco, Austin and Boston — properties are shutting down and occupancy rates are at unprecedented lows.

Total spending on travel in the United States — including from transportation, retail, lodging and restaurants — is expected to drop by $355 billion for the year, or 31 percent — more than six times the impact of the Sept. 11, 2001, terrorist attacks. The projected 4.6 million jobs lost would, by themselves, nearly double the U.S. unemployment rate, from 3.5 percent to 6.3 percent, according to the U.S. Travel Association.AD

White House expresses support for making immediate cash payments to Americans as part of coronavirus stimulus package

The travel industry is joining airlines and casinos in calling for a government rescue. On Tuesday, Treasury Secretary Steven Mnuchin said that the Trump administration wants to send direct cash payments to Americans in the next two weeks as part of a giant economic stimulus package in planning between Congress and the White House. The overall price tag of the package could be around $1 trillion.

The hotel industry is asking for $150 billion, largely in the form of direct grants, to keep employees on the payroll and small businesses afloat. The broader travel industry is also seeking an additional $100 billion, executives said on a press call. Those tallies are separate from the more than $50 billion being sought by the airline industry.

The requests were presented in a White House meeting Tuesday by industry leaders to President Trump, Vice President Pence and other officials handling the pandemic.

Chip Rogers, president and chief executive of the AHLA, said the coronavirus has had a more severe economic effect on the lodging industry than 9/11 and the 2008 financial crisis combined. In a stunning reversal, the industry is facing the possibility that half of the hotels in the United States could close this year, Rogers said.

The prospect is especially dire for the 83 percent of travel employers that, according to U.S. Travel, are small businesses.

Jon Bortz, president and chief executive of the Pebblebrook Hotel Trust and the AHLA chairman, said his company let 4,000 employees go and expects to lay off an additional 2,000 by the end of the month — representing more than three-quarters of its workforce.

Pebblebrook, which has 54 hotels nationwide, is facing shutting the doors at more than half of its properties.AD

Douglas Dreher, president and chief executive of the Hotel Group, said occupancy at some properties had dropped to the single digits and that one-third of the company’s workforce will be let go in the near term.

“It is for us the Great Depression,” Dreher said. “We need help.”

Industry leaders emphasized that government funding would need to come within days. Direct grants would go toward lost salaries and toward ensuring hotel owners can make their mortgage payments.

Marriott International said Tuesday that it was starting to furlough what it expects to be tens of thousands of employees. The hotel chain, which has nearly 1.4 million rooms and employs 130,000 people in the United States, began shutting down some managed properties last week. Those who lost their jobs will not be paid while on furlough, but they would continue to receive health-care benefits, the company said.

Headshot of Rachel Siegel

Rachel Siegel is a national business reporter. 

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The Coronavirus Crisis Is Showing Us How to Live Online

We’ve always hoped that our digital tools would create connections, not conflict. We have a chance to make it happen.

Credit…Rebekka Dunlap
Kevin Roose

By Kevin Roose

March 17, 2020

Source: New York Times

For someone who has barely left his house, I’ve had a shockingly busy few days.

First, there were the hyperactive group texts, which started up last week with dozens of messages a day from friends about the latest coronavirus news, along with photos of our overstuffed pantries. Then came the FaceTime calls from friends and relatives who were also stuck indoors and trying to stave off loneliness.

Last weekend, in between trips to the grocery store, I checked up on some friends using Twitter D.M.s, traded home-cooking recipes on Instagram, and used WhatsApp to join a blockwide support group with my neighbors. I even put on my Oculus virtual reality headset, and spent a few hours playing poker in a V.R. casino with friendly strangers.

I expected my first week of social distancing to feel, well, distant. But I’ve been more connected than ever. My inboxes are full of invitations to digital events — Zoom art classes, Skype book clubs, Periscope jam sessions. Strangers and subject-matter experts are sharing relevant and timely information about the virus on social media, and organizing ways to help struggling people and small businesses. On my feeds, trolls are few and far between, and misinformation is quickly being fact-checked.

There is no use sugarcoating the virus, which has already had devastating consequences for people all over the world, and may get much worse in the months ahead. There will be more lives lost, businesses closed and communities thrown into financial hardship. Nobody is arguing that what is coming will be fun, easy or anything remotely approaching normal for a very long time.

But if there is a silver lining in this crisis, it may be that the virus is forcing us to use the internet as it was always meant to be used — to connect with one another, share information and resources, and come up with collective solutions to urgent problems. It’s the healthy, humane version of digital culture we usually see only in schmaltzy TV commercials, where everyone is constantly using a smartphone to visit far-flung grandparents and read bedtime stories to kids.

Already, social media seems to have improved, with more reliable information than might have been expected from a global pandemic. And while the ways we’re substituting for in-person interaction aren’t perfect — over the next few months in America, there may be no phrase uttered more than “Can someone mute?” — we are seeing an explosion of creativity as people try to use technology as a bridge across physical distances.

Just look at what’s happening in Italy, where homebound adults are posting mini-manifestos on Facebook, while restless kids flock to multiplayer online games like Fortnite. Or see what’s happening in China, where would-be partyers have invented “cloud clubbing,” a new kind of virtual party in which D.J.s perform live sets on apps like TikTok and Douyin while audience members react in real time on their phones. Or observe how we’re coping in the United States, where groups are experimenting with new kinds of socially distanced gatherings: virtual yoga classes, virtual church services, virtual dinner parties.

A University of Washington professor joining a digital happy hour for a prospective hire.
A University of Washington professor joining a digital happy hour for a prospective hire.Credit…Grant Hindsley for The New York Times

These are the kinds of creative digital experiments we need, and they are coming at a time when we need them more than ever.

We are on the brink of what Vox’s Ezra Klein calls a “social recession” — an epidemic of loneliness and isolation brought on by the virus. The social recession will hit certain groups especially hard — older people, people with disabilities, people who live alone. But we will all feel isolated to some degree. And as long as it remains unwise to gather in physical spaces, we will need to create virtual spaces that can sustain us.

Building a virtual world to replace a broken physical one is not a new idea. It has been a staple in sci-fi narratives for decades, including classics like “Snow Crash” and “Ready Player One.” Many of these stories are dystopian in nature — in them, virtual reality is simply an escape from a real world that is falling apart.

But digital tools can also help strengthen our real-world ties if we use them the right way.

One thing we know for certain is that actively participating in online culture is far better than passively consuming it. Research shows that people who use social media actively — by sending messages, leaving comments or talking in group chats, for example — report being happier than those who simply scroll through their feeds, absorbing news stories and viral videos. Netflix binges and YouTube rabbit holes are fine for escapism, but if you’re looking to find solace on the internet, lurking alone won’t cut it — you need to contribute.

We also know that not all platforms are created equal. With so much alarming information flying around, private group messages and videoconferences are likely to produce calmer, more nourishing interactions than public platforms like Twitter and Facebook, both of which are designed to amplify content that is outrageous, divisive or otherwise highly engaging.

All over the country, citizen technologists are using digital tools to strengthen their offline communities. In San Bernardino, Calif., David Perez created a Facebook group called California Coronavirus Alerts to share localized information with his neighbors. A group of public-school teachers in Mason, Ohio, created a Google Doc to share ideas about how to keep teaching students during a state-ordered school closure. In the Bay Area, where I live, people are building databases to keep track of which seniors need help having groceries and prescriptions delivered.

It’s possible that this boom in prosocial internet behavior is temporary, and that the grifters and trolls who tend to glom onto major news events will swarm in to ruin it.

But it’s also possible that after spending years using technologies that mostly seemed to push us apart, the coronavirus crisis is showing us that the internet is still capable of pulling us together.

That’s why it’s so important that everyone — especially older people, students and people in low-income communities — has access to these tools. The digital divide is real, and in the coming months, those without internet access or devices that can run newer software will be shut out of many of the digital communities we’re building to support one another.

In addition to other economic rescue measures, it may be time for a kind of global Geek Squad, an army of tech-savvy people who can deliver free or deeply discounted devices to people who don’t have them, and teach them (from a safe distance) how to join Zoom conferences, send and receive text messages, and make FaceTime calls.

Recently, I called Jaron Lanier, the author and technologist who coined the term “virtual reality.” Mr. Lanier, who has been experimenting with building virtual communities for years, said he understood why the idea of moving our offline institutions onto the internet made some people uncomfortable.

“We saw the internet turn into this weird, dark manipulation machine,” he said. “Naturally, we worry that this could be another way to become lost or crazy.”

But he also said there was reason for cautious optimism, given the creative ways people are already finding to move their real-world support systems online.

“The obvious thing to say” about the coronavirus, Mr. Lanier said, “is that people will suffer from a sense of isolation. But there might be some good things. It could reintroduce people to their families. It might make people a little more grounded. It helps you reappreciate the wealth we have in a place like a home. It’s kind of a revelation that we have the good fortune to even be able to do this.”

Mr. Lanier is right. As the virus forces us indoors, we should be thinking of ways to invest in our digital spaces, and build robust virtual connections that can replace some of the physical proximity we’re losing, as well as mobilizing to support our real-world communities in a time of enormous need.

We can use technology to meet this crisis, rather than just distracting ourselves from it.

Kevin Roose is a columnist for Business Day and a writer-at-large for The New York Times Magazine. 

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Doctors and Patients Turn to Telemedicine in the Coronavirus Outbreak

Source: New York Times

The use of virtual visits climbs as a way of safely treating patients and containing spread of the infection at hospitals, clinics and medical offices.

Dr. Meeta Shah, an emergency room doctor, taking video calls at Rush University Medical Center in Chicago, which is using telemedicine to screen and treat patients.
Dr. Meeta Shah, an emergency room doctor, taking video calls at Rush University Medical Center in Chicago, which is using telemedicine to screen and treat patients.Credit…Danielle Scruggs for The New York Times
Reed Abelson

By Reed Abelson

March 11, 2020

The man had recently traveled, including a brief stop in Tokyo. He had a fever and cough about a week ago, but was now feeling fine.

He called the virtual medical line set up by Rush University Medical Center in Chicago recently to help screen patients for coronavirus.

“He said all the right buzzwords: cough, fever, fatigue,” said Dr. Meeta Shah, an emergency room physician at Rush.

After talking with him, Dr. Shah did not think he needed to be admitted but referred him to the city’s health department.

Rush and other large hospitals across the country are quickly expanding the use of telemedicine to safely screen and treat patients for coronavirus, and to try to contain the spread of infection while offering remote services.

“This is a kind of turning point for virtual health,” Dr. Shah said. “We’re actually seeing how it can be used in a public health crisis.”

While the notion of seeing a doctor via your computer or cellphone is hardly new, telemedicine has yet to take off widely in the United States. Health insurance plans do typically offer people the option of talking to a nurse or doctor online as an alternative to heading to an emergency room or urgent care center, but most people don’t make use of it. Now doctors, hospital networks and clinics are rethinking how the technology can be used, to keep the worried well calm and away from clinical care while steering the most at risk to the proper treatment.

“The use of telemedicine is going to be critical for management of this pandemic,” said Dr. Stephen Parodi, an infectious disease specialist and executive with The Permanente Medical Group, the doctors’ group associated with Kaiser Permanente, one of the leaders in the use of virtual visits for its patients.

Telemedicine got an additional boost under the $8.3 billion emergency funding measure from Congress, which loosened restrictions on its use to treat people covered under the federal Medicare program. At a news conference on Monday, Seema Verma, the administrator of the Centers for Medicare and Medicaid Services, praised the government’s efforts to expand the use of telemedicine under Medicare, the federal program for people 65 and older.

In a meeting on Tuesday at the White House with President Trump, private health insurers also said they would pay for the virtual visits for people who may have coronavirus to improve access to care for their customers.

By using their phone or computer, patients will be able to get guidance about whether they need to be seen or tested instead of showing up unannounced at the emergency room or doctor’s office. Patients, particularly those who would be at high risk for a serious illness if they were infected, can also opt to substitute a trip to a doctor’s office with a virtual visit when it is a routine check in with a specialist or a primary care doctor. That way they can avoid crowded waiting rooms and potential infection.

When Rush admitted a student last week who was believed to have the virus, the hospital was able to prepare for his arrival by clearing the ambulance bay of people and vehicles to protect patients and hospital staff from possible infection. Taken to an isolation room, he was examined by Dr. Paul Casey, an emergency room physician, and a nurse, both in protective gear.

An infectious disease specialist was consulted over an iPad. The patient, who did have the virus, was released last Friday, and Rush was able to avoid the fate of other hospitals in the United States, where patients with Covid-19 led to the widespread quarantine of health care workers.

“When the news of coronavirus broke last month, we saw the opportunity,” Dr. Casey said.

Health systems are racing to adapt and even develop virtual services that can serve as their front line for patients. “Telehealth is being rediscovered,” said Dr. Peter Antall, the chief medical officer for AmWell, a company based in Boston that is working with health systems across the country. “Everybody recognizes this is an all hands on deck moment,” he said. “We need to scale up wherever we can.”

Other systems are also readying their telemedicine offerings. “The Covid-19 outbreak is going to serve as an impetus,” said Dr. Shabana Khan, the director of telepsychiatry at NYU Langone Health. “We have no choice.”

Patients concerned about the coronavirus are being directed to NYU’s virtual urgent care, which they can gain access to via their phone or a computer.

“Our volumes are showing they are hearing that message loud and clear,” said Dr. Paul A. Testa, an emergency medicine doctor who is the system’s chief medical information officer.

NYU is also encouraging its doctors who are self-quarantined because of recent travel to see patients using video, as well as directing patients who are particularly vulnerable because of existing medical conditions to consider a virtual visit instead of heading to a doctor’s office.

But Dr. Testa emphasized that patients who need to be seen in person should not hesitate to seek care. “We’re not discouraging anybody from coming in,” he said.

Virtual care has its limits, of course, and many of the start-ups and others promoting their offerings may not be fully equipped to handle patients who might have the virus. At Zoom+Care, a chain of clinics in Oregon and Washington, consumers are being encouraged to use the company’s online chat feature so that their risks can be assessed.

“We’re being very explicit at Zoom+Care that we can’t test you for Covid-19,” said Dr. Mark Zeitzer, who is the clinics’ medical director of acute care services. Instead, people may be told to self-quarantine and keep a careful eye on their symptoms.

But the idea of using telemedicine to prevent further spread of the virus is being adopted quickly. At Intermountain Healthcare, the Utah system that cared for an infected patient at its Salt Lake City hospital, the concern over a potential measles outbreak last year led executives to consider how to better protect the community from infectious diseases.

“When coronavirus hit the streets, we took the measles work-flow and expanded on it,” said Kerry Palakanis, a nurse practitioner who is the executive director of Intermountain’s initiative, Connect Care.

The system is also thinking about how it can use the same technology to deliver home health care, particularly for patients who are at high risk because of chronic medical conditions or have Covid-19 but can be treated safely at home. People at home could be equipped to take their blood pressure or test their blood sugars, and a doctor or nurse could be available over video.

By monitoring more patients virtually, Intermountain will be able to limit the potential exposure of nurses who conduct home visits. “Those nurses are traveling out throughout the community,” Dr. Palakanis said.

Telemedicine companies say they are getting an increase in the number of calls, both from those who want to know more about what they can do to minimize their risk of catching coronavirus and those with worrisome symptoms. “We see the whole spectrum of patients,” said Dr. Kristin Dean, medical director for Doctor On Demand, a company whose service is offered to customers of some of the major health insurance companies.

In evaluating whether patients may be safely monitored at home, doctors take into account people’s medical history and the severity of their symptoms, she said.

“The patients have been appreciative of that switch,” said Dr. Parodi of Permanente. “Many of them don’t want to come in and be exposed in a clinic or office setting.”

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Understanding Equal Employment Opportunity and the EEOC

Equal Employment Opportunity Commission EEOC document and pen on a table.

Source: HRMorning

What is the EEOC?

The Equal Employment Opportunity Commission, more commonly referred to as the EEOC, is a federal agency that is authorized to enforce and interpret certain federal laws prohibiting employment discrimination against federally protected classes. The EEOC’s authority expands across the entire spectrum of the employment relationship. It covers situations involving hiring all the way through to issues involving separation from employment.

Promotions, workplace harassment, wages, training and benefits and retaliation are just some of the specific areas the EEOC has the authority to address.

The EEOC doesn’t always have the last word on specific employment issues; in fact, courts are free to reject EEOC guidance and interpretations. But that’s not what usually happens. Instead, courts tend to defer to the agency as sort of a subject-matter expert with respect to how federal anti-discrimination employment laws should be interpreted and applied.

A key takeaway from this fact: Knowing the EEOC’s position on a particular issue, as expressed through its guidance or enforcement activities, is a very important step covered employers should take to remain EEOC compliant.

Speaking of covered employers, most employers with at least 15 employees have to comply with the federal laws that the EEOC handles. (An exception applies with respect to the federal law banning age discrimination, which bumps the minimum number up to 20.)

In most instances, employment agencies and labor unions are also covered.

Employees who believe they have been discriminated against in violation of a law enforced by the EEOC can file an administrative charge of discrimination with the agency. The EEOC proceeds by investigating the charge and trying to resolve it without going to court.

If its investigation results in a finding that there has been unlawful discrimination, it tries to negotiate a settlement with the offending employer. If that doesn’t work, it can go ahead and file a lawsuit on the complaining employee’s behalf. But the agency’s resources are limited, and that happens in only a very small percentage of cases.

If the agency’s investigation results in a finding that the employer did nothing wrong, the complaining party can still choose to go to court without the EEOC’s help, subject to certain prescribed time limitations.

The EEOC does much more than just investigate discrimination charges. It also tries to prevent employment discrimination via a number of outreach, technical assistance and education programs.

In addition, it helps federal agencies comply with equal employment opportunity requirements, and it periodically issues detailed guidance concerning specific discrimination-related employment law issues.

It also issues regulations regarding the laws it is authorized to enforce.

The agency has its headquarters in Washington, D.C., and it operates 53 offices nationwide.

EEOC Laws

The EEOC is authorized to interpret and enforce only certain specific federal laws. Essentially, employment discrimination is its domain. Here are the specific federal laws it enforces and what those laws say.

Title VII

Title VII of the Civil Rights Act of 1964, more commonly referred to simply as Title VII, is a federal law banning employment discrimination based on race, color, religion, national origin or sex. Remember that this law covers the entire employment process, from application through separation from employment.

Importantly, it also bans retaliation. More specifically, it prohibits covered employers from retaliating against a person because the person has filed a discrimination charge, complained about discrimination, or participated in an investigation or lawsuit.

Under Title VII, covered employers must accommodate the sincerely held religious beliefs of applicants and employees unless doing so would impose an undue hardship on the employer’s operations.

Title VII’s ban on sex discrimination encompasses a ban on sexual harassment in the workplace. In other words, under Title VII sexual harassment is a form of prohibited sex discrimination.

Physical or verbal conduct of a sexual nature is unlawful under Title VII when it negatively affects the victim’s employment, interferes unreasonably with work performance, or creates a hostile working environment. Under Title VII, the harasser can be a man or a woman, and the victim and the harasser can be of the same sex.

Here’s a fact that may come as a surprise: The victim does not have to be the direct target of the harassment. Instead, it can also be another employee who is also negatively affected by the harassing behavior.

Pregnancy Discrimination Act

Businesswoman in hijab writes ides on adhesive notes on office window

The Pregnancy Discrimination was passed in 1978. It amended Title VII to specifically ban discrimination on the basis of pregnancy.

Under the Pregnancy Discrimination Act, covered employers cannot discriminate against women based on pregnancy, childbirth, or a medical condition that is related to either.

Like Title VII, the Pregnancy Discrimination Act prohibits employers from engaging in unlawful retaliation. Employers cannot retaliate against a person because the person complained of pregnancy discrimination, filed a discrimination charge, or participated in an investigation or lawsuit.

Equal Pay Act

The Equal Pay Act, or EPA, requires covered employers to provide equal pay to men and women who perform equal work in the same workplace.

The jobs don’t have to be identical; instead, the question is whether they are substantially equal. If they are, equal pay is required.

The law doesn’t address salary only. It covers all forms of pay, including things like overtime, bonuses, stock options and profit-sharing.

The EPA bans retaliation against those who have complained of discrimination, filed a discrimination charge, or participated in a discrimination lawsuit or investigation.

Age Discrimination in Employment Act

The Age Discrimination in Employment Act, or ADEA, prohibits covered employers from discriminating against individuals who are 40 years of age or older. The law applies to applicants as well as employees.

What if a covered employer favors an older employee over a younger one, and both employees are over the age of 40? This doesn’t violate the ADEA, according to the EEOC.

The person who discriminates does not have to be younger than 40 to trigger the ADEA’s protections, the agency adds. In other words, for example, an over-40 supervisor can violate the ADEA by discriminating against an over-40 employee.

The statute bars discrimination with respect to all terms and conditions of employment.

It also prohibits age-based harassment. Although isolated offhand comments relating to age probably won’t be enough to violate the law, employers may be on the hook if the harassment either creates a hostile or offensive work environment or leads to an adverse job action such as a demotion or termination from employment.

File this one under the “you may be surprised to learn” category: The harasser doesn’t have to be someone who works for the employer. Instead, it can be a client or customer.

Example: A 60-year-old salesman complains to his manager that a customer keeps telling him that he’s too old for the job and that he should retire. The manager tells the salesman that the company can’t afford to lose the account and that there’s nothing he can do. In this example, the employer may be liable under the ADEA for the harassment.

Americans with Disabilities Act

Two African-American businesswomen having a meeting in a boardroom, one in a wheelchair and one in a chair

Title I of the Americans with Disabilities Act, more commonly referred to as the ADA, prohibits covered employers from discriminating against qualified applicants and employees on the basis of disability.

A “disability” is a physical or mental impairment that substantially limits at least one major life activity, such as breathing, seeing, sleeping and walking. It also includes a record or past history or such an impairment as well as being regarded as having such an impairment.

The law applies to all aspects of the employment relationship, including hiring, firing, compensation, benefits, and all other terms and conditions of employment.

To win an ADA claim, an individual has to do more than show he has a disability; he must also show that he is qualified for the position that he seeks or holds.

A fundamental concept of Title I is that employers are required to make “reasonable accommodations” to help qualified individuals with disabilities do their jobs, subject to the limitation that employers need not make accommodations that would result in what the law calls an “undue hardship” for the employer.

Employers have to understand that the ADA thus goes far beyond merely requiring evenhanded treatment of people with disabilities. Instead, they must take affirmative steps to do things for people with disabilities that they need not do for people without disabilities, such as providing a sign-language interpreter for a deaf applicant during a job interview or providing regularly scheduled breaks to an employee with diabetes so that he can monitor his blood sugar and insulin levels. This is an absolutely critical point for employers to keep in mind.

The ADA has some rules about medical examinations and inquiries. Think of it this way: One rule applies to applicants who have not been offered a position; a second rule applies to people who have been offered a position but have not yet started working; and a third applies to current employees.

Here’s how it shakes out.

Job applicants cannot be asked about the existence, nature or severity of a disability, although they can be asked whether they can perform job functions.

Once an offer is made, the offer can be made contingent on the results of a medical exam – as long as an exam is required for all new employees in similar jobs.

Finally, medical exams can be required for existing workers only if the exams are related to the job and are consistent with the employer’s legitimate business needs.

The ADA doesn’t protect people who use drugs illegally. This includes use of illegal drugs, such as crack cocaine, and illegal use of otherwise legal drugs, such as prescription pain medications.

A final word on the ADA’s employment requirements: Employers may not retaliate against an individual for opposing discriminatory employment practices or for filing a discrimination charge or participating in an investigation, lawsuit or other proceeding relating to the ADA.

Federally Protected Classes

Shot of a diverse group of businesspeople standing against a wall

The laws that the EEOC enforces apply to what are known as “protected classes” of individuals. Employers need to keep in mind that every single applicant and employee is a member of at least one of these protected classes. The classes correspond to the laws that create the protections.

Of course, the fact that an applicant or employee is “protected” does not mean that no adverse action can ever be taken against him. But employers can’t take adverse action against an employee based solely on the fact that he is a member of protected class.

Here are the protected classes created by federal laws barring employment discrimination.

Title VII created the protected classes of race, color, religion, national origin and sex.

These may sound pretty straightforward, but a couple of them are a bit more involved than they may seem to be.

Discrimination based on national origin, for example, includes bias based on the fact that someone is from a particular part of the world or country; because of ethnicity or an accent; or because they look like they are from a certain ethnic background.

Color definitely overlaps with race, but they aren’t the same thing. That means color discrimination can happen between two people of the same race. The EEOC defines “color” discrimination quite literally: The agency says it refers to skin pigmentation, complexion, or skin tone or shade.

It’s a mistake to assume that the protected class of religion encompasses only those who are part of traditional organized religions. The EEOC’s view is that the class also includes others who have “sincerely held religious, ethical or moral beliefs.”

Exactly what is meant by “sex” discrimination has been a hotly debated issue. Some say the class is meant to refer to one’s physical sex at birth as determined by sexual organs. But the EEOC says it’s much broader than that. The agency’s position is that unlawful sex discrimination under Title VII includes discrimination based on sexual orientation and gender identity.

Under the ADEA, the answer of who is protected is much clearer: People who are at least 40 years old are members of the protected class.

The ADA creates the federally protected class of people with disabilities. Under the statute, a “disability” is a physical or mental impairment that substantially limits at least one major life activity, such as breathing, seeing, sleeping and walking. It also includes a record or past history or such an impairment as well as being regarded as having such an impairment.

The term “substantially limits” is construed broadly. Except for ordinary eyeglasses or contact lenses, the determination of whether a person is substantially limited in a major life activity is to be made without reference to the ameliorative effects of mitigating measures like medication.

Pregnancy is another protected class. Under the Pregnancy Discrimination Act, covered employers cannot discriminate against women based on pregnancy, childbirth, or a medical condition that is related to either.

Record-Keeping Requirements

The EEOC has issued regulations that require covered employers to hold on to personnel or employment records for a period of one year. When a worker is let go, his records are to be kept for a year from the termination date.

The ADEA requires employers to keep payroll records for a period of three years. Employee benefit plans as well as written seniority or merit systems are to be kept while the plan or system is in effect and for at least a year after termination.

Records that explain why different wages are paid to employees of opposite sexes in the same establishment are to be kept for at least two years.

EEO-1 Form

The EEOC collects information about employer workforces from employers that have 100 or more employees. Lower thresholds are applicable to federal contractors. Employers report this information annually using the EEO-1 Form.

Information relating to race/ethnicity, gender and job category is used to create a compliance survey.

The provision of the data by covered employers is not voluntary. Instead, the data must be provided.

The agency uses the information that is collected in the reports for a variety of purposes, including enforcement and research.

Handling Discrimination Complaints

Lawyer explaining concepts to a client

When an employee presents an employer with an internal complaint of discrimination or harassment, responding promptly and effectively is essential to avoiding legal liability. Here’s a general roadmap that employers should follow to stay EEOC compliant.

It should go without saying that the employer must take the complaint seriously and not jump to conclusions about whether it has merit. Employers need to keep an open mind about what happened and quickly proceed to conduct an objective, prompt and thorough investigation into whether any EEOC laws have been violated.

Promptness and thoroughness with respect to the investigation are key.

Employers should make sure to show empathy for the accuser, especially in cases involving alleged harassment on the basis of sex or some other protected characteristic, such as disability or age. Showing respect and compassion can greatly assist in achieving a swift and smooth resolution.

In harassment cases, it’s best for employers to speak directly to the accuser first. Then they should talk separately to the accused before following up with direct talks with any witnesses to the alleged harassment.

Employers should make sure to document, document, and then document some more. Every part of the investigation, from beginning to end, should be carefully documented in writing. It’s a good idea for the internal investigator to take notes contemporaneously during face-to-face interviews.

Details regarding the complaint should be kept confidential. This keeps the rumor mill from getting started, and it helps to avoid the polarization that can take place when word gets around that a complaint has been filed.

If there are established internal procedures in place for handling discrimination and harassment complaints, such as those set forth in an employee handbook, employers must ensure that those procedures are followed to a T.

In harassment cases, prompt and appropriate remedial action must be taken if the complaint is substantiated. This is an absolute key to avoiding legal liability. If the investigation stalls or fails to result in appropriate remedial measures when harassment is proven, the employer will likely find itself in big trouble. The appropriate disciplinary response will depend on the nature and severity of the violation.

Employers cannot retaliate against employees because they complained about alleged discrimination or harassment.

Some employees may choose to bypass the internal complaint procedure and go straight to the EEOC with an allegation of unlawful discrimination or harassment.

Employers that get hit with such a charge should begin by carefully reviewing the charge notice that the EEOC will send to them. This “Notice of a Charge of Discrimination” tells the employer that a complaint of discrimination has been filed against it. It’s important to note that this is merely a notice that a charge has been filed and that at this early stage of the case the agency has not yet determined whether the charge has any merit.

The notice typically will ask the employer to provide a response to the charge, also known as a “position statement.” This is essentially the vehicle by which the employer gets to tell its side of the story.

Even if the charge appears to the employer to be meritless, it’s imperative that the employer fully cooperate with the EEOC through the conclusion of the investigation, such as by complying with requests from the agency for additional information.

The EEOC typically offers mediation as a way to resolve the charge confidentially and swiftly. This can be a cost-efficient way to resolve the matter.

EEOC Retaliation Guidance

The EEOC places a lot of emphasis on making sure employees feel free to complain about what they see as discrimination or harassment without fear of being punished by their employer for filing a complaint. That’s why the laws enforced by the agency ban retaliation.

Employees can’t be punished for complaining of discrimination or harassment, cooperating in an investigation or other proceeding, or filing a charge of discrimination or harassment.

Employers should remember that retaliation is a separate offense. In other words, an employer can be liable for unlawful retaliation even if the employee’s underlying complaint turns out to be meritless.

Example: Joe says co-worker Denise has been constantly subjecting him to unwanted sexual advances. Joe’s boss immediately demotes Joe before an internal investigation conclusively shows that Denise did nothing wrong. Joe does not have a valid harassment claim, but his odds of winning a retaliation claim against the employer are high.

To prove unlawful retaliation, an employee has to show that he participated in a protected activity; that he was subjected to a materially adverse job action, such as termination or demotion; and that there is a pretty clear causal connection between the protected activity and the adverse action.

In plain English: The employee must show he was punished for complaining or participating in a proceeding.

There are many things employers can do to reduce the chances that unlawful retaliation will occur in the workplace.

A simple and obvious step for employers to take is to have a clearly written, plain-language policy that specifically prohibits workplace retaliation. The EEOC recommends that employers include the following in the policy:

  • Examples of prohibited acts of retaliation,
  • Steps to take to avoid retaliation, such as guidance about supervisor and managers should deal with employees who have presented claims of discrimination
  • A reporting mechanism, which simply means a way for employees to present allegations of retaliation, and
  • A clear explanation that employees who retaliate can be disciplined.

Another tip from the EEOC: Get rid of any policies that might discourage employees from engaging in protected activities.

For example, a policy that imposes adverse actions on employees who discuss wages might constitute unlawful retaliation, the agency advises.

In addition to having a clear written anti-retaliation provision that is communicated to all employees, employers should keep in mind the crucial role that proper training can play in avoiding unlawful retaliation in the workplace.

Here are a few ideas for employers in that regard, courtesy of the EEOC:

  • Provide anti-retaliation training, including refresher training, to all managers, supervisors and employees. Top management should make it clear that retaliation isn’t an option.
  • Make sure employees know what is meant by “protected activity,” and give examples of how to avoid specific problem situations that might come up.
  • If there has been an issue in the past regarding alleged retaliation, talk about how the situation might have been better handled.
  • Let managers know that feelings of revenge or retribution may arise when an employee presents an allegation of discrimination – and that they cannot act on those feelings.
  • Train managers and HR staffers on how to be both proactive and responsive when employees raise concerns about possible violations.
  • Don’t limit training to office workers only. Instead, include all those working in a range of settings, such as manual laborers and farm workers.
  • Generally encourage a respectful workplace.

Here’s another tip: If an employee files a complaint of discrimination, a built-in part of the employer’s response should be to tell all parties involved about the employer’s policy against retaliation.

It’s also a good idea for higher-ups to check in with involved parties, including supervisors and managers, while a discrimination investigation is pending to provide guidance and prevent unlawful retaliatory responses.

Finally, the EEOC advises employers to have someone review any proposed disciplinary measures to make sure they are not retaliatory in nature. The designated individual can be a management official or in-house counsel, the agency says.

How to Prevent Harassment in the Workplace

Sea of diverse people putting their hands together

Want to take the best path to preventing harassment in your workplace? Here are five core principles the EEOC says employers should keep in mind:

  • Have engaged and committed leadership.
  • Ensure accountability.
  • Maintain strong and complete harassment policies.
  • Make sure you have effective complaint procedures in place.
  • Provide regular training that is tailored specifically to your organization.

Senior leaders must make the message loud and clear: Harassment at our workplace is not tolerated.

How do employers demonstrate this commitment?

One is for senior leaders to clearly and repeatedly make it known that harassment is prohibited.

Employers also need to make sure there are enough resources in place to enable the adoption and implementation of effective strategies that prevent harassment.

Assessment of risk factors is another important step toward preventing harassment, the EEOC says. Of course, when risks are identified steps should be taken to minimize or eliminate them.

A harassment policy should be comprehensive and easy to understand, and there should be a complaint system in place that all employees can readily access. Regular training is important, as are prompt and appropriate remedial disciplinary measures when they are warranted.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

When You Can Sue an Employer for Wrongful Termination

Disappointed Businesswoman Standing With Cardboard Box in Office
•••

BY JEN HUBLEY LUCKWALDT 

April 24, 2019

If you’ve recently been terminated for cause, you may be wondering whether your employer was within their rights to fire you—or whether your dismissal constitutes wrongful termination. And, if it turns out you were fired illegally, your next question will probably be whether you can—and should—sue.

What Doesn’t Count as Wrongful Termination

The majority of workers in the United States are employed at will, which means that their employers can fire them for any reason, or no reason at all, provided that the reason isn’t discriminatory. (More on that in a minute.)

  • This means that it’s usually legal for your employer to terminate your employment unexpectedly, without advanced warning, and to decline to provide a reason for your termination.

In fact, many employers choose to offer as little notice or explanation as possible, even going so far as to characterize the termination as a layoff, rather than take the risk of violating the law by providing a reason that later turns out to be discriminatory.

Bottom line: Unless you have an employment contract or collective bargaining agreement that mandates a certain amount of notice, it’s legal for your employer to fire you without notice.

They are also not obligated to provide you with an opportunity to correct issues pertaining to your work performance before terminating your employment. (Although again, as a matter of company policy, many employers will create a standard process for termination that includes a performance improvement plan, both to minimize the chances of legal hassles and to maintain good morale among the staff.)

Examples of Wrongful Termination

Per federal law, it’s illegal for employers to discriminate in hiring, firing or promotion on the basis of:

  • Sex or Gender
  • Race or Color
  • Religion
  • National Origin
  • Disability
  • Pregnancy
  • Age (over 40, per federal law, although some states offer protections for workers younger than age 40)
  • Genetic Information

Workers can also sue or file a complaint with the Equal Employment Opportunity Commission if they are sexually harassed at work, fired for being a whistleblower, subject to constructive discharge (aka forced to resign), or made to endure a hostile work environment.

Questions to Ask Yourself Before Suing

1. Do you feel that the termination was based on discrimination? If so, you will likely have to file a charge of discrimination with the EEOC before filing a job discrimination lawsuit against your former employer. (The exception: violations of the Equal Pay Act do not require you to file a charge, provided that you file your suit within two years of the pay discrimination.) Keep in mind that you have a limited amount of time in which to file—generally, 180 days from the time of the incident, although local laws may extend this deadline to 300 days. For more information, see the EEOC’s page on filing a discrimination charge.

2. What’s your goal in suing (and is it realistic?) Do you want money, a change in behavior, or just the satisfaction of knowing that they didn’t get away with it, scot-free? It’s important to know what your goals are before you get embroiled in a long legal process. Consult with an employment attorney early on, to figure out whether your goals are reasonable. 

3. Are you willing to invest time and money in pursuing your case? Unless you’re able to find an employment attorney to take your case pro bono, suing is expensive. It can cost thousands of dollars to take a suit to trial. To make matters worse, employers typically have in-house lawyers at the ready to wear you down with delays and postponements. On the other hand, many lawful termination lawsuits never reach trial, often because employers choose to settle. Think about how much time, money, and effort you can afford to put into the process before you proceed.

How to Move on After Being Fired

Regardless of whether you choose to sue for wrongful termination, you’ll need a plan for moving forward after being fired. That means knowing your rights as a (former) employee, including when and where to pick up your final paycheck, whether you’re entitled to pay for accrued vacation and sick time, what will happen with your health care benefits, retirement plan, any stock options and more.

HR will be able to assist you with these questions, as well as inform you about how the company plans to characterize the dismissal. It’s in your best interests to find out now before future employers call asking to verify your employment history.

Don’t assume that they’ll say the worst: many organizations have a policy of confirming no more than job title and dates of employment. You may even be entitled to unemployment benefits, depending. You won’t know until you ask.

Looking toward the future, practice answering interview questions about the termination, and gather references from contacts to bolster your candidacy for jobs. Don’t let this reversal stand in the way of your success. Many famous and influential people were fired before making their mark on the world, including Steve Jobs, Oprah Winfrey, and Thomas Edison. 

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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