Employment Law Archives

Jim Shrimp | August 18, 2015

Suspension with Pay is Not Discrimination

August 18, 2015

When an employer investigates potential wrongdoing by an employee, there are a number of potential landmines. One is the issue of how to treat the employee during the internal investigation; it’s possible the treatment of the employee could lead to liability under various employment discrimination statutes. In a decision last week, the United States Third Circuit Court of Appeals provided clarity on one common aspect of that treatment: “suspension with pay.”

In the case Jones v. Southeastern Pennsylvania Transportation Authority the court was asked to determine for the first time whether a suspension with pay can be considered discrimination under Title VII. The Third Court held that, absent unusual circumstances, a suspension with pay cannot support a discrimination or hostile environment claim. The Third Circuit did not decide whether a suspension with pay could support a retaliation claim.

The details of this case

The plaintiff in Jones began working as an administrative assistant with SEPTA in 2001. In 2010, Jones’ supervisor suspended her with full pay after discovering apparent fraud in her timesheets, and referred the investigation to SEPTA’s office of inspector general. Within days, the plaintiff filed a complaint against the supervisor alleging that the supervisor sexually harassed and retaliated against her. She had never filed any complainst against him before.

After a nearly three month investigation, SEPTA’s office of inspector general concluded that the plaintiff had in fact submitted fraudulent timesheets. SEPTA suspended her without pay, and formally terminated her approximately two months later. In March 2011, the plaintiff filed a complaint with the Pennsylvania Human Relations Commission and thereafter filed an action in Federal court.

Here’s what employers need to consider

Substantive Discrimination – In order to establish a substantive discrimination claim, a plaintiff must prove that she suffered an “adverse employment action.” The Third Circuit has described an adverse employment action as “an action by an employer that is serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Based on this definition and a review of decisions from other Federal Circuit Courts of Appeal, the Third Circuit held that “a paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII’s substantive provision.” To circumvent this bright line rule, a plaintiff must prove that the suspension with pay is somehow “atypical.”

In Jones, the Third Circuit held that there was nothing “atypical” about the plaintiff’s suspension with pay. Notably, the plaintiff’s suspension with pay lasted three months, and therefore it can be concluded that an extended period of suspension with pay does not create an atypical situation.

Hostile Environment – In hostile environment cases, even if a plaintiff establishes severe and pervasive hostile conduct, the employer can defend against such a claim if the plaintiff suffered no “tangible employment action.” The Third Circuit held that the suspension with pay is not a tangible employment action, which is akin to adverse employment action, and therefore the plaintiff in Jones could not bring a hostile environment claim.

What it means for employers

The Third Circuit has provided clarity for employers in Pennsylvania, New Jersey and Delaware on when, or if, to incorporate a suspension with pay into a progressive discipline policy. In Jones, the court declared that a suspension with pay cannot support a discrimination or hostile environment claim unless it is atypical. To avoid a finding of an atypical suspension with pay, I recommend that an employer specifically incorporate a suspension with pay into its progressive discipline policy and that suspension with pay be neutrally applied among protected classes.

For more information feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Jim Shrimp | July 24, 2015

Background Check on Potential and Current Employees

July 24, 2015

By James B. Shrimp, Esq.

Today, most employers run some sort of background check on potential employees and current employees, including credit, financial and criminal background checks. In some industries, these background checks go right to the heart of the job. For instance, passing a background check is a requirement of school teachers and security guards because they are responsible for others, and for bank tellersand telemarketers that deal with credit card and social security information. In other industries, employers request background checks when criminal or poor financial conduct might not be as pertinent to the job responsibilities. In either case, the employer has certain responsibilities with respect to this information, as a recent lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”) illustrates.

Federal law does not prohibit employers from seeking criminal background information regardless of how much it pertains to the job; however, Title VII does prohibit employers from discriminating when they use criminal history information. Specifically, Title VII prohibits employers from using policies or practices that screen individuals based on criminal background information if:

* The criminal background checks significantly disadvantages Title VII protected individuals such as African-Americans or Hispanics; and

* The criminal background information does not help the employer accurately decide if the person is likely to be a responsible, reliable or safe employee.

Moreover, the EEOC views an arrest record different than a conviction. For instance, if a potential employee has been arrested for theft, the arrest record alone should not be used by the employer to take an adverse employment action (e.g., not hiring, firing or suspension). On the other hand, a conviction record alone can usually be used by the employer to justify an adverse employment action.

The recent EEOC lawsuit relates to the records of criminal background checks that need to be kept by the employer. Federal regulations require that if an employer uses a “test” or other selection procedures to make employment decisions (e.g., hiring, promotion, and mass layoff) the employer must keep records regarding the test or the selection procedure, so that the EEOC can inspect to determine if the test of selection procedures have an adverse impact on any protected class. A criminal background check is such a “test.”

In 2010, the EEOC commenced an investigation into a Philadelphia area janitorial service company. The janitorial service company routinely ran criminal background checks on potential employees; however, when the EEOC subpoenaed the company for documents related to the criminal background checks and the decisions resulting from them, the janitorial service company said there were no records. Earlier this month, the EEOC brought an action asking the Court to order the janitorial service company to keep records related to criminal background checks and to pay the EEOC’s costs related to bringing the action.

In short, if you are an employer that uses criminal background checks or other tests to cull potential or current employees, make sure you maintain the background checks and tests for two reasons. First, the employer should periodically self-audit to ensure that its use of background checks and tests are not, for example, unfairly/unlawfully excluding a specific protected class from hiring. Second, the employer needs to keep the information in case the EEOC requests the information.

There are some state-by-state laws and regulations regarding the acquisition and use of criminal background checks and these laws and regulations also need to be consulted by employers.

For more information feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

Thomas D. Rees | May 2, 2014

Employees Using Social Media, Can Anything You ‘Post’ Be Used Against You?

By Thomas D. Rees, Esq.

May 2, 2014

Sometimes I think that, before they post about individual employment issues on social networking sites, social media users should see a warning similar to the Miranda warning: “You have the right to remain silent; anything you say may be used against you!”

In two recent cases, heeding this warning could have prevented a job loss or loss of a valuable settlement.

Case #1: Sometimes, you may even have a duty to remain silent!

Employers and employees settle termination and discrimination cases every day. Typically, the employer pays the employee an agreed upon sum, the employee releases the employer from all liability, and both parties agree to keep the settlement confidential. Keeping the settlement confidential suggests the following rule: No discussion on social networking sites!

In Gulliver Schools v. Snay, So.3d, 2014 WL 769030 (Fla. App. Feb. 26, 2014), the plaintiff’s college-age daughter violated this rule, with disastrous results. She used Facebook to discuss her father’s confidential $80,000 settlement of his employment dispute with a private school. The daughter said, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. S**K IT.” The daughter sent the posting to 120 Facebook friends right after the parties entered into the settlement.

The school found out about the post. The school refused to make the settlement payment, contending that the daughter’s Facebook post breached the settlement agreement. (The agreement required the plaintiff to disgorge the whole settlement amount on the breach of the confidentiality agreement.) The father sued to enforce the agreement, won at the trial court level, but lost on the school’s appeal. The father said he had not told the daughter that he had won his case, but he had mentioned the settlement to the daughter, even though the agreement allowed only disclosure to his spouse. Ironically, the daughter had no plans to go to Europe.

The temptation to vent is strong, and social media is an available vehicle to vent. But a confidential settlement agreement of an individual employment claim is just that – confidential– and therefore not a wise subject for a social media posting.

Case #2: Don’t air dirty family laundry and expect to keep your job in a family concern!

In Smizer v. Community Mennonite Early Learning Center, 538 Fed. Appx. 711 (7^th Cir. 2013), affirming 2013 WL 1154263 (N.D. Ill. Mar. 19, 2013), three generations of one family worked in a nonprofit preschool. The mother was the Executive Director, the grandmother was a volunteer, and the son worked as a teacher’s assistant. The son supported his sister in a bitter custody dispute over the sister’s daughter; the mother and grandmother took the opposite side. When the court ruled for the sister, the son apparently posted a profanity-laden tirade on Facebook, directed at the mother and grandmother. The mother learned about the post through various employees and individuals who were the son’s Facebook friends. The mother fired her son for insubordination because of the Facebook post. The son sued for gender discrimination, and denied making the Facebook post. The courts upheld the termination on summary judgment, citing the mother’s reasonable belief that the son had posted the offensive message.

The Gulliver and Smizer decisions lead to one more rule for employees, totally aside from the importance of the confidentiality issues: It’s a good idea not to gloat in public when you win a point on your employer, particularly in profane or snarky terms.

Finally, before posting a controversial Facebook message, individual employees would do well to remember the lament of one of our least effective Presidents, Warren G. Harding. As his presidency unraveled because of the corruption of his Ohio cronies, Harding said: “I have no trouble with my enemies…. But my friends, my g*d-d**ned friends, they’re the ones who keep me walking the floor at night!”

NOTE: This blog addresses social media postings regarding individual issues and employers in the private sector. It does not address the possibility that postings about working conditions might be treated as a concerted activity that is protected by the National Labor Relations Act (aka the Wagner Act). Nor does it address issues related to postings by public employees, which may in certain situations be protected constitutionally.

For more about these cases or employment law, please contact Thomas D. Rees at 610-275-0702 or by email at trees@highswartz.com.