By Ashley K. Laken and Timothy F. Haley

Triancular_red_flagSeyfarth Synopsis: On October 20, the DOJ and the FTC jointly issued their Antitrust Guidance for HR Professionals, stating that DOJ intends to pursue employers criminally for alleged wage fixing and no-poaching agreements.  

On October 20, 2016, the DOJ and FTC jointly issued their “Antitrust Guidance for Human Resource Professionals.”  The Guidance explains how antitrust law applies to employee hiring and compensation practices.  The agencies also issued a “quick reference card” that lists a number of “antitrust red flags for employment practices.”

In a nutshell, agreements (whether formal or informal) among employers to limit or fix the compensation paid to employees or to refrain from soliciting or hiring each other’s employees are per se violations of the antitrust laws.  Also, even if competitors don’t explicitly agree to limit or suppress compensation, the mere exchange of compensation information among employers may violate the antitrust laws if it has the effect of suppressing compensation.

The seriousness of this issue is underscored by the agencies’ statements in their press releases that the guidance is aimed at putting companies on notice that DOJ will proceed criminally against wage fixing and no-poaching agreements.  There also has been a significant uptick in recent years in class action litigation and enforcement activity challenging antitrust violations in the employment context.  In one exchange of wage information case in Detroit, a group of hospitals paid a total of $90 million to settle the case, and in one consolidated case involving allegations of agreements among employers not to poach each other’s employees, the defendants settled for a total of $435 million.

The evidence in many of these cases demonstrates that many HR professionals and other managers and executives do not realize that the antitrust laws apply in the employment marketplace just as they do in the commercial marketplace.  It is important that those HR professionals and other managers and executives who are involved in recruiting, hiring or the compensation process have a clear understanding of antitrust requirements as applied to those practices.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Antitrust/Trade Regulation Team or the Workplace Policies and Handbooks Team.


By Johanna T. Wise and Ryan L. Behndleman

Seyfarth Synopsis: Do employers have to let employees sleep on the job as a reasonable accommodation for a disability? While far from being decided, a recent federal case in the Southern District of New York addresses the issue.

Let’s face it, we all get tired from time to time. While on the clock, however, sleeping at work is a practice that employers invariably frown upon. Earl Beaton learned this the hard way when he was fired from his job with New York City’s Metro Transit Authority (MTA) after briefly nodding off during his shift. But Mr. Beaton’s situation is not as clear as it seems because he fell asleep due to a side effect caused by his necessary prescription medication. Mr. Beaton did not intend to take his termination lying down, so he filed suit against his former employer for discriminating against his disability.


Mr. Earl Beaton was diagnosed with schizophrenia and depressive disorders in 1985. Without medication, Beaton is prone to psychotic episodes and delusions. To counteract these symptoms, Beaton was prescribed an anti-psychotic medication called Fluphenazine, which can cause drowsiness.

Beaton disclosed his illness to his employer in 1995, and was able to work for many years without incident while taking the medication as prescribed. In 2000, Beaton was even promoted to a position as a station agent. Then, during the overnight shift on December 23, 2013, Beaton encountered a problem. Around 1 a.m. Beaton experienced severe schizophrenic symptoms and took a pill to counteract those symptoms. Three hours later, the symptoms had not subsided, so he took another pill. The high dosage made Beaton extremely drowsy, and it appeared that he briefly nodded off. It was at this moment that Beaton’s supervisor approached and caught him sleeping on the job.

After disciplinary hearings, although Beaton denied that he was actually sleeping, MTA terminated his employment. He then filed a charge with the EEOC and soon thereafter filed suit in the Southern District of New York.

MTA’s Motion To Dismiss

Upon service of the complaint, MTA filed a motion to dismiss for failure to state a claim upon which relief can be granted. In this stage of a case, the court generally relies on the allegations made by the plaintiff to decide whether there are enough facts to sustain plausible claims. Using this standard, the court dismissed Beaton’s failure to accommodate claim but allowed the discrimination and retaliation claims to survive.

Many employers may learn of this decision and think, “What?! I can’t terminate an employee for sleeping on the job?” But rest assured, this case is far from decided. When a court decides a motion to dismiss, it looks for one key issue: Does the plaintiff have plausible claims based on what the plaintiff alleged in his complaint? Further, the court must view these allegations in the light most favorable to the plaintiff.

In his judicial opinion, Judge Edgardo Ramos assessed Beaton’s discrimination claim by using a well-established four-part test: 1) Was the plaintiff a member of a protected class? 2) Was the plaintiff qualified for the position? 3) Did the plaintiff suffer adverse employment action? and 4) Is there some minimal evidence to support an inference of discrimination? As you can see, the bar is extremely low for what will pass muster under this test. While MTA argued that Beaton’s need to sleep made him unqualified for his position, the court noted that his 13 years of satisfactory performance established that he was qualified to perform the essential functions of his job.

As for the retaliation claim, to survive a motion to dismiss the plaintiff only needs to show that he engaged in protected activity (i.e. filing a grievance with a labor union or filing an EEOC claim) that the employer was aware of, and that it caused the employer to take adverse employment action against him. Judge Ramos noted that this claim survived because there is the possibility that the termination decision occurred after Beaton engaged in protected activity, and that was enough to raise a plausible claim.

So What Happens Next?

This case is far from over. The surviving claims will enter the discovery phase to allow each side to collect evidence to support their claims or defenses. The case could be decided on summary judgment or settled at any stage of the litigation process.

It is important to note that in his opinion regarding the motion to dismiss, Judge Ramos did not decide whether employers need to allow their employees to sleep on the job as a reasonable accommodation. So what should employers do? Just as before, employers should engage in an interactive process if an employee or applicant with a disability requests an accommodation to determine if the employee can be reasonably accommodated without causing an undue hardship. Employers should also carefully review and consider consulting with an attorney before taking adverse employment action where the underlying behavior at issue is tied to a disability. But at this point, there is no need to lose any sleep over this case.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.


By Paul Whinder and Tessa Cranfield

Seyfarth Synopsis: The trend of increased regulation of the financial services industry continues apace in the UK with the recent introduction of mandatory rules on whistleblowing governance. .

New rules on whistleblowing have come into effect which impact certain Financial Conduct Authority (FCA) and Prudential Regulatory Authority (PRA) regulated financial services firms. The aim of these rules is to promote a change in workplace culture to encourage workers to raise concerns and challenge poor practices or behaviours.

These new rules came into effect on September 7, 2016. The changes are recapped below.

Which firms are obliged to implement these new rules?

The new rules apply to firms which are UK entities and which:

  • Take deposits and have assets of £250 million or more (including banks, building societies and credit unions);
  • Are PRA-designated investment firms; or
  • Are insurance and reinsurance firms within the scope of the Solvency II Directive, the Society of Lloyds and managing agents.

Although the rules are not mandatory for other FCA and PRA regulated firms, they have non-binding guidance status and may be taken into account in the event of a regulator investigation compliance or governance issues.

What are firms required to do?

Relevant firms must create and maintain an independent whistleblowing channel, i.e. a means through which disclosures can be made and are then effectively assessed and dealt with. The channel must permit anonymous and confidential disclosures and cannot be limited to matters which the firm believes would amount to ‘whistleblowing’. It must also be open to everyone, including the public. Complaints that would not amount to whistleblowing (for example employee grievances or customer complaints) can however be identified and then dealt with outside the firm’s whistleblowing regime. Whilst there is an obligation to promote the availability of the whistleblowing channel to the firm’s workforce, there is no equivalent obligation to promote its availability to the wider public.

Firms are also now obliged to make employees aware of the FCA and PRA’s services as an alternative to their own process. They can no longer instruct employees to raise matters internally before contacting the regulators, although they can still encourage them to do so.

However, importantly, these rules do not introduce a regulatory obligation on the firm’s staff to blow the whistle.

What are the obligations regarding staff training in respect of these new rules?

The workforce must receive bespoke training as follows:

  • UK based employees must receive training that includes the following:
    • A statement that the firm takes the making of reportable concerns seriously;
    • A reference to the ability to report reportable concerns to the firm and the methods for doing so;
    • Examples of events that might prompt the making of a reportable concern;
    • Examples of action that might be taken by the firm after receiving a reportable concern by a whistleblower, including measures to protect the whistleblower’s confidentiality; and
    • Information about sources of external support such as whistleblowing charities.
  • Managers of UK based employees must receive training that includes the following:
    • How to recognise when there has been a disclosure of a reportable concern by a whistleblower;
    • How to protect whistleblowers and ensure their confidentiality is preserved;
    • How to provide feedback to a whistleblower, where appropriate;
    • Steps to ensure fair treatment of any person accused of wrongdoing by a whistleblower; and
    • Sources of internal and external advice and support on the matters referred to above.

Note that this requirement applies, even if the managers are not based in the UK.

  • Employees with responsibility for operating the firm’s internal whistleblowing arrangements must receive training that includes how to:
    • Protect a whistleblower’s confidentiality;
    • Assess and grade the significance of information provided by whistleblowers; and
    • Assist the whistleblowers’ champion when required.

How do these rules fit in with the Senior Manager/Certificate Regime?

  • Whistleblowers’ Champion. As we previously reported, relevant firms also need to appoint a whistleblowers’ ‘champion’ (ordinarily a non-executive director, but otherwise a “senior manager” within the FCA or PRA regimes). The designated “Champion” is tasked with oversight of the whistleblowing policies and procedure and filing an annual report to the Board, to be made available to the FCA or PRA on request.
  • Settlement agreements. A statement must now be included in settlement agreements stating that the agreement does not prevent the individual from making a protected disclosure. This will likely already be familiar to clients operating in the US financial services sector. Further, the agreement must not contain any promise from the employee that they have not made a protected disclosure or know of any information which could lead to such a disclosure being made.
  • Tribunal claims. If the firm loses a “whistleblower” claim (i.e. an employment tribunal claim that a member of staff was subjected to a detriment or unfairly dismissed for “blowing the whistle”) then this must be reported to the FCA/PRA, as appropriate.


In practice, many firms will already have robust whistleblowing procedures in place, in particular where they are subject to Sarbanes Oxley. Firms should however review their current procedures to check they do comply with the specifics of these new rules – in particular, the fact the whistleblowing channel should be open to the public and the new staff training obligations that may include some non-UK managers. Adequate systems will need to be put in place to identify those UK and non UK employees who will need to be trained (and flag up where employees, such as US managers, move into roles where training is required) and to keep a record what has been delivered. Finally, as noted above, even if certain FCA/PRA regulated firms are not obliged to implement these new rules, they must still be treated as non-binding guidance meaning that they may in fact start to become the norm in the financial services sector.

For more information on this or any related topic please contact the authors, our Seyfarth Partner in London, Ming Henderson, your Seyfarth attorney, or any member of the Whistleblower Team, the International Employment Law Team, or the White Collar, Internal Investigations, and False Claims Team.

By Mark A. Lies, II and Adam R. Young

Seyfarth Synopsis: As OSHA’s enforcement relating to employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels to address this hazard.

Business today is regularly conducted through cell phones, as a necessary tool for employees to communicate and access digital information. Bring Your Own Device programs and employee cell phone use present a range of employment and labor liabilities for employers: smartphones can be a forum for employees to engaged in protected concerted activity, an opportunity for unauthorized overtime work, and a tool to access inappropriate images and harass coworkers.  Yet the biggest challenge posed by cell phones is  their inappropriate use.

Distracted driving is the number one cause of workplace fatalities, and cell phones are the biggest cause of distraction in the forms of text messaging, talking, and game-playing. Cell phone distractions can impugn employees’ spatial awareness, recognition of hazards, and operation of dangerous equipment. Finally, studies show that certain cell phone batteries have resulted in fires and explosions.  Accordingly, employers with Bring Your Own Device programs or who provide cell phones for use at the workplace must understand and manage any risks that may be associated with the use of these devices.

Distracted Driving

Employers whose businesses require the use of cars, vans or trucks must understand that their policies and training regarding the safe operation of those vehicles–and the inclusion of a clear prohibition against texting on a hand held cell phone while driving–are of strong interest to OSHA, the law enforcement community, insurance carriers and potential civil litigants. Failure to address this hazard can result in significant employer liability.

Federal OSHA maintains a Distracted Driving Initiative, in which it targets texting as a major cause of workplace injuries.  In a 2010 open letter to employers, Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) David Michaels said, “It is your responsibility and legal obligation to have a clear, unequivocal and enforced policy against texting while driving….Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their jobs. OSHA will investigate worker complaints, and employers who violate the law will be subject to citations and penalties.”  OSHA has used its General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, to issue citations and proposed penalties in these circumstances.  OSHA considers “distracted driving” which can include texting (and potentially the use of cell phones for telephone calls) to be a “recognized hazard” under the General Duty Clause to employee safety.  Penalties for willful violations of the Act under the General Duty Clause can be as high as $124,709.

Even with a no-texting policy, OSHA may cite employers when employees are texting while driving, where texting is a common workplace practice. OSHA indicates that “when it receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, [OSHA] will investigate and where necessary issue citations and penalties to end this practice.”  Accordingly, employers need to be wary of workplace texting, and make clear that texting while driving is prohibited.

Distracted Operation of Industrial Machinery

Inappropriate use of cell phones presents safety hazards far beyond the driving of personal vehicles. At the most obvious, operators of Powered Industrial Trucks or other industrial machinery, including overhead cranes, can be distracted by cell phone use.  OSHA regulations squarely forbid the use of cell phones in construction regulations pertaining to cranes and derricks (29 C.F.R. § 1926.1417(d)), but the hazard exists across any dangerous equipment.  Accordingly, active operation during the use of industrial equipment should be strictly prohibited.

Distracted Employees at the Workplace

As any employer with industrial machinery knows, preventing accidents starts with making sure employees are aware of their surroundings.  The inappropriate use of cell phones imperils employees’ ability to recognize and react to hazards, such as passing forklifts, which can hit pedestrian employees.  Of recent concern is the use of “augmented reality” games, such as Pokémon Go, in which players view the world through cell phone screens, walk around while distracted, and search real world sites for game-related information.  These games encourage cell phone use and distraction while walking around, and should be prohibited from the worksite.

Additional Liabilities for Distracted Employees

Of course, OSHA citations and associated penalties are not the only liabilities that employers must be concerned about when it comes to cell phone distractions. For example, thirteen states ban the use of handheld phones while driving for talking.  46 states and the District of Columbia ban text messaging for all drivers, and in many of the remaining states similar bans are in place at the county or city level.  These laws make texting while driving illegal and also open employers to liability for accidents that result from their employees’ distracted driving and improper use of cell phones.

Employees face both individual civil and criminal liability for damages that result from accidents caused by texting while driving or engaging in other work Likewise, employers face vicarious liability for the acts of their employees under agency law for personal injury or property damage they cause during the course of employment.  When an accident happens as a consequence of distracted driving or operating machinery while the employee is on company time, the employer is potentially liable.  Where the employer has not affirmatively prohibited texting while driving and enforced that policy, the employer faces potential liability as a result of the accident.

Vicarious liability, as it is called, is not a new legal concept. Employers have faced liability in similar situations for decades for the acts of their employees that occur during the course of the employment relationship. Consider the claims made against pizza delivery companies whose drivers were instructed to deliver a pizza in 30 minutes or less.  In the context of distracted driving, the price of vicarious liability can be significant.  In Florida, a lumber wholesaler settled for over $16 million after one of its salesman hit and severely disabled an elderly woman while talking on a cell phone.

Beyond potential OSHA administrative penalties and civil and criminal liability, employers should also consider how their policies and practices can affect their insurance rates. There is no question that with an increase in accidents caused by distracted employees, the cost of worker’s compensation and other insurance coverage will rise.

Cell Phone Fires and Explosions

Modern cell phones use lithium-ion batteries, that in some cases, allegedly have caused fires and sparks while in stand-by or charging. Defective batteries allegedly have produced smoke and grounded a flight, ignited a car, and smoldered on a child’s pillow.  A cell phone manufacturer has reported 35 cases of its devices’ batteries burning or exploding while charging, and has issued a recall for millions of devices.  The Federal Aviation Administration has issued a warning about a particular model of personal device, telling passengers ”not to turn on or charge these devices on board aircraft and not to stow them in any checked baggage.”

Consequently, some cell phones may represent a recognized fire hazard at the workplace. As the Agency’s understanding of the hazards develops, we anticipate that may OSHA address this issue under the General Duty Clause, citing employers who fail to protect employees from the recognized hazard of cell phone battery fires. Employees who work around flammable vapors or dust may face risks from fires and explosions.  It is a common practice at gasoline stations to have warnings that cell phones should not be used while fueling because of the potential for ignition of flammable gasoline vapors.  Employers must manage and limit the potential fire hazards posed by recalled cell phones in the workplace.


As OSHA’s enforcement relating to inappropriate employee cell phone use gains more notoriety, it can be expected that it will have a significant collateral impact on law enforcement at all levels. Employers may wish to look closely at their policies, procedures, and training systems to determines whether updates are appropriate to reduce potential individual civil and criminal liability of employees, as well as the vicarious liability to the employer.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or the Workplace Policies and Handbooks Team.

By Kristin McGurn and Molly Mooney

Seyfarth Synopsis: A coalition report issued by DOJ and EEOC that tackles workplace diversity barriers in the ranks of law enforcement sheds light on the agencies’ views of best practices for enhancing diversity in recruitment, hiring and retention, which are applicable to all employers.

On October 5, 2016, the Department of Justice’s (DOJ) Civil Rights Department and the Equal Employment Opportunity Commission (EEOC) co-released Advancing Diversity in Law Enforcement, a report aimed at tackling diversity in America’s law enforcement ranks.  The DOJ/EEOC coalition resulted from President Obama’s December 2014 Task Force on 21st Century Policing.  That Task Force brought together law enforcement leaders, advocates, academics, policymakers, and community members to strategize around strengthening community-police relations, reducing crime, and advancing public safety.  A key Task Force recommendation was to ensure law enforcement agencies better reflect the diversity of the communities they serve.  The EEOC and DOJ’s findings are generally applicable to employers hoping to promote or maintain diversity in the workplace.

As a result of the Task Force, DOJ and EEOC launched an interagency research initiative designed to help law enforcement agencies recruit, hire, and retain officers that reflect the diversity of the communities in which they work. The report focuses on these primary channels for improving diversity, and concludes that significant barriers to diversity hinder recruitment, hiring and retention.  For example, strained relationships between law enforcement and underrepresented communities may dissuade members of those communities from applying to be officers.  Similarly, law enforcement agencies’ reliance on inadequately tailored examinations as part of the screening process may inadvertently exclude qualified individuals from underrepresented communities from the applicant pool.  Finally, when such individuals are hired, they may face difficulties in the promotion process due to a lack of transparency, and a scarcity of role models, mentors, and development opportunities.

DOJ and EEOC collaborated with law enforcement leaders, civil rights advocates, employment litigators, and other subject matter experts to analyze promising practices being developed and used to combat these barriers to diversity. The report acknowledges that employers in many industries have engaged in proactive efforts to improve diversity, and ultimately concludes that the three most important ways to do so in law enforcement, where the need is urgent, are focusing on community policing, engaging stakeholders (within and outside of law enforcement), and reevaluating employment criteria, standards, and benchmarks.

With respect to recruitment, the report urges agencies to pursue targeted community outreach efforts to encourage people from diverse populations to consider careers in law enforcement. It also concludes that partnerships with schools and universities can address, and reverse, historically negative perceptions or experiences diverse communities report having had with law enforcement.  Additionally, the innovative use of technology and social media was found to be critical to law enforcement’s ability to connect with all members of the community.  The DC Metropolitan Police Department, for example, maintains a robust social media presence and reported that ninety percent of applicants reach the department from either their smartphone or tablet.

With respect to hiring, the report concludes that agencies that adopt a holistic view of the skills and strengths of applicants may be better able to diversify their ranks. This involves a willingness on the part of law enforcement agencies to reevaluate information revealed during background checks and to reconsider selection criteria that are unrelated to job performance.

Finally, the report advocates for mentorship programs and leadership training, which are considered essential. Incentives, such as temporary housing, college credit, or financial bonuses for foreign language skills, also can help diverse officers stay on the job.

The processes and practices identified in the report are easily transferrable to a variety of workplaces and settings. For example, the report concludes that mentorship programs can help retain diverse employees by providing them with an informal mechanism through which to learn critical, and often unwritten, information about how to succeed and advance in a particular workplace.  The report also serves as a reminder to employers that all stages of employment — recruitment, hiring, and retention – call for implementing and maintaining practices that will promote and sustain diversity.  Research supporting the report suggests that increasing workplace diversity yields employers that are more responsive, open to reform, and willing to initiate cultural and systemic changes, which are worthy goals for all employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

By Meredith-Anne Berger and Tracy M. Billows

Seyfarth Synopsis: Recently, the Second Circuit held that the “cat’s paw” theory of liability may be used to support recovery for claims of retaliation where an employer negligently relies on information provided by a low-level employee with an “unlawful animus,” allowing employees to have an “outsize role” in an employment decision.

In Vasquez v. Empress Ambulance Service, the plaintiff complained of sexual harassment and the company began conducting an investigation, which led to the company’s downfall.  After getting wind of the complaint, the alleged harasser, Gray, himself produced false evidence that the plaintiff, Vasquez consented to and solicited a sexual relationship of her own accord and had in fact harassed Gray, which resulted in Vasquez’s termination.  The court found the company’s reliance on the information Gray provided during the investigation to be unjustifiable.  The court held that as a matter of law, the company could be found liable for Gray’s acts, despite the fact that he was a low-level employee.

The company’s investigation got off on the wrong paw from the start. First, Gray walked into the room where Vasquez was writing a formal complaint, and confronted her about reporting him.  Adding fuel to the fire, Gray then asked his coworker to lie for him and tell the supervisors that the harasser and the plaintiff were in a romantic relationship.  The coworker refused, but meanwhile, Gray manipulated a text message conversation between he and the Vasquez to make it appear as though another person with whom he exchanged sexual banter was actually Vasquez.  He then presented these doctored texts to the company, to show that he had been in a consensual relationship with Vasquez. The court was skeptical that the company could believe that Gray conveniently had printed copies of amorous text messages with Vazquez, at the very time she reported sexual harassment.

Vasquez’s supervisors thanked her for telling her story, and promised to sort the situation out, but refused to allow Vasquez to show them explicit photos sent to her by the alleged harasser. On the basis of the doctored text messages given to them by Gray and a “racy” selfie purportedly sent to Gray by Vasquez (which only showed a fraction of a face and was by no means “unequivocally” a photo of the plaintiff), the company fired Vasquez for sexual harassment. The supervisors refused to see any evidence from Vasquez that would refute Gray’s evidence and refused to show Vasquez the purported photo of her.  The court later noted that Gray “more closely resembl[es] a vengeful suspect than an independent informant.” The company failed to see the problem with blindly trusting Gray’s evidence that pointed the finger at the complainant while conducting an investigation into his own conduct.

The Second Circuit considered whether cat’s paw liability would allow the company to be held liable for its reliance on the alleged harasser’s (a coworker of plaintiff) retaliatory information. The court found that where an employer, through its own negligence, gives effect to the retaliatory intent of one of its low-level employees, it may be held liable for retaliation under Title VII.

However, the court also held that an employer who relies on a false report of an employee, but does so non-negligently and in good faith, cannot be held liable under the “cat’s paw” theory under Title VII. Further, the court found that an employer who, albeit negligently, relies on a low-level employee’s false accusations is not liable under Title VII unless the employee’s statements were the product of discriminatory or retaliatory intent, though the company may still face liability under state law for common law negligence.

This case highlights the importance of an independent, prompt, and thorough investigation (including looking at all of the evidence, not just select evidence) of any complaints of harassment, however unlikely litigation may seem at that stage. An investigation may later prove to be a sword, not a shield.

By Matthew J. Gagnon, Christopher J. DeGroff, and Gerald L. Maatman, Jr.

Seyfarth Synopsis: With the end of another EEOC fiscal year employers look with anticipation to what the year-end trends can tell us about the sometimes elusive EEOC litigation agenda. In years past, the EEOC has engaged in a “filing frenzy,” with dozens of lawsuits filed in the waning days of the fiscal year. Although there was an uptick in filings this year, the EEOC’s FY 2016 went out with a whimper and not a roar.

We have prepared the following chart, which shows the total monthly filings for FY 2013-2016, which highlights the EEOC’s historical year-end filings compared to the somewhat tepid activity that we saw this year.







As with prior years, we anticipate that the EEOC may continue to file cases well into the night in the courthouses of the Western states, so the final tally may not be known for another 48 hours. But at the time of publication, the raw numbers show that the EEOC filed 136 lawsuits in FY 2016 (99 merits lawsuits and 37 subpoena enforcement actions). This is significantly less than prior years. (See here, here, here, and here.) The reason for this significant drop in lawsuits most likely can be attributed to the EEOC’s limited budget coupled to an already bloated litigation inventory. The fact that this is an election year with all of the possible changes that may represent could also be impacting the EEOC’s willingness to commit to additional litigation so close to November.

FY 2016 was originally planned to be the final year of the EEOC’s 2013-2016 Strategic Enforcement Plan (“SEP”). The EEOC developed the SEP in 2012 in order to set its priorities and goals for enforcement activity through 2016. Last year, the EEOC received permission from the Office of Management and Budget to delay the release of a new SEP until 2018 so that the Commission could align its strategic planning with other agencies. Although the SEP has now been extended through 2018, this year still marks the final planned year, and provides a useful moment in time to look back and take stock of where the agency has driven its enforcement program over the past four years.

Cases Filed By EEOC District Offices

Location is always a key factor for defending against EEOC litigation. Year after year, certain EEOC district offices distinguish themselves by the number of cases that they file. The map below shows the number of filings by each district office in FY 2016.










Filings by district office in FY 2016 were pretty much on par with prior years with one glaring exception. Year over year, Chicago has been the consistent leader in terms of total cases filed. Last year alone, the Chicago office filed 27 lawsuits. This year, the Chicago office filed only 7, a shockingly low number for that office. The other traditional filing leaders stayed consistent with prior years, and some even ticked up a bit in FY 2016. The Philadelphia office filed 22 lawsuits in FY 2016, up from 19 last year. The Charlotte office filed 16 lawsuits this year, compared with 13 last year. The Phoenix office filed 17 lawsuits in FY 2016, the same as last year. The bar chart below compares the number of filings from each office for FY 2013 – FY 2016.

What Do The FY 2016 Filings Say About The EEOC’s Priorities?

Each fiscal year we analyze the EEOC’s filings to determine substantive trends. The following chart shows the number of claims categorized by statute, along with a further division of the largest category – Title VII – by discrimination theory.

As with prior years, Title VII cases were the majority of cases filed, making up 41% of all filings (as compared with 55% in FY 2015 and 57% in FY 2014). This is not particularly surprising given the number of protected groups covered by the statute. ADA cases also made up a significant percentage of the EEOC’s filings, totaling 41% this year. Together, complaints alleging discrimination under those two statues made up 82% of all cases filed in FY 2016. Age cases represented a relatively small 5% of the overall cases.













In late August, the EEOC issued its final revision to the Enforcement Guidance on Retaliation and Related Issues (which we discuss here), replacing the 18 year old Section 8, “Retaliation” portion of the Compliance Manual last updated in 1998. This revision touches upon all of the statutes which the Commission enforces, and covers the legal analysis used to define evidence that supports retaliation claims as well as retaliation remedies, legal access for persons with disabilities under the ADA, and even a play-by-play of employer/employee interactions that might prompt retaliation.

Considering the EEOC’s renewed focus on this area, we analyzed the FY 2016 retaliation cases to test which discrimination claims are most often paired with a retaliation claim. The following chart shows which types of discrimination were paired with retaliation allegations in FY 2016:






Sex + retaliation cases make up the largest percentage of these claims at 46%, followed by race discrimination at 27%, pay discrimination at 13%, age discrimination at 7%, and disability discrimination at 7%. Pregnancy discrimination, national origin discrimination, religious discrimination, and genetic discrimination all had zero claims of retaliation.

In addition to the revised retaliation guidelines, the EEOC also revised its Employer Information Report (EEO-1) yesterday to require employers to submit information regarding employee pay range and hours worked. The Commission asserts that the purpose of collecting this pay data along with race, ethnicity, sex, and job category would be to “assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” It is, by most accounts, an ominous development for the future of EEOC litigation.

The EEOC also issued its final rules on employer wellness programs as they relate to the ADA and GINA, which clarify the implications of those rules and their interactions with employer wellness programs. We reported on this development here. Harassment was also a hot button issue for the Commission in FY 2016, with a particular focus on Muslims and people of Middle Eastern origin. Among other things, the EEOC issued a call-to-action for employers to ‘reboot’ harassment prevention efforts (which we discuss here).

Insight & Implications For Employers: Conclusions

As with prior years, this year’s analysis reveals that the EEOC’s activities continue to be guided by the 2012 SEP. For the past four years, we have reported on the many ways that the SEP has guided and shaped the EEOC’s enforcement initiatives – and with that, the landscape of labor and employment law. FY 2016 was the last year that was planned to be covered by the 2012 SEP. As we enter FY 2017, it is unclear whether we will see more of the same, or if we will see the EEOC branching out to new priorities and initiatives that may line up with its vision for the 2018 SEP and the future of EEOC litigation.

We will continue to analyze the data and filings from FY 2016 to extract additional insight about the EEOC’s litigation priorities, and what employers should watch out for in FY 2017 and beyond. We look forward to distilling those observations into our annual analysis of trends and developments affecting EEOC litigation. We hope that you are looking forward to that publication as much as we are, and that you continue to find it a useful reference and guide to developments in EEOC litigation. Please stay tuned, loyal blog readers!

By Karla Grossenbacher and Selyn Hong

Synopsis: Wearable device data may be the next big thing in the world of evidence for employment cases. Given the nature of the information captured, it is easy to see how this type of data may be relevant to claims of disability discrimination, workers’ compensation and even harassment

Wearable device data may be the next big thing in the world of evidence for employment cases since social media. Given that it has already been used in personal injury and criminal cases, it is only a matter of time before wearable device data is proffered as evidence in an employment case.

From Fitbit to the Nike FuelBand to a slew of others, the worldwide wearable market has exploded in recent years. In a world increasingly obsessed with health and fitness, wearable devices offer instantaneous and up-to-the-minute data on a number of metrics that allow the user to assess his or her own health and fitness.  Wearable devices can track information like heart rate, calories, general level of physical activity, steps taken, diet, blood glucose levels and even sleep patterns.  Given the nature of the information captured, it is easy to see how wearable device data may be relevant to claims of disability discrimination, workers’ compensation and even harassment.

Evidence of What?

Wearable device data has been used in at least two nonemployment cases to date. In 2014, a personal trainer in Calgary, Canada, used wearable device data in her personal injury case to demonstrate the extent of her injuries.  She wore a Fitbit during an “assessment period” to show that, as a result of her injuries, she maintained activity levels under a baseline for someone of her age and profession.

And in 2015, police in Lancaster, Pennsylvania used Fitbit data to support criminal charges against a woman who they asserted had made a false report to law enforcement that resulted in a manhunt for her alleged assailant. The woman had claimed that a man had broken into the house in which she was staying while she was asleep, pulled her out of bed and sexually assaulted her.  But her Fitbit told a different story.  It revealed that she had been awake and walking around at the time she claimed to have been attacked while sleeping.  The Fitbit data, along with other evidence, led investigators to conclude that the woman was lying and charges were brought against her.

You Are What You Wear

In the employment litigation context, wearable device data could help a factfinder determine whether a plaintiff is “disabled,” has a “serious medical condition” or suffered a workplace injury. Data such as heart rate, physical activity level, number of steps taken, and sleep patterns could all be probative of an individual’s physical and mental state.  Employers facing disability discrimination claims could use wearable device data much like they would use medical records and social media postings — to investigate and, if appropriate, discount a plaintiff’s claim that his or her “major life activities” like walking or sleeping have been substantially limited.

In harassment cases, wearable device data could show whether a plaintiff’s heart rate went up when the claimed harassment occurred. It could also provide probative evidence of whether harassment was severe and pervasive during the relevant time period.  Wearable device data could also help prove or disprove any claimed emotional distress damages.  For example, wearable device data could help demonstrate sleep loss or even an increased heart rate as probative evidence of anxiety.

To Admit or Not to Admit

Despite its obvious probative value, the admissibility of wearable device data as evidence in employment litigation is not a foregone conclusion. Wearable devices come with inherent reliability issues.  For instance, devices that count steps based solely on arm movements may erroneously count fidgeting while lying in bed as steps taken.  In 2015, a California man filed a class action suit against Fitbit, alleging that the company’s sleep tracking is inaccurate and constitutes false advertising.  Additionally, a user may forget to wear the device or neglect to change the battery.  And there is always the possibility of data manipulation whether by jostling to create false readings or having someone else wear the device.

But that is not to say that wearable device data should not be admissible. Courts and legal practitioners alike regularly work with flawed forms of evidence.  They know all too well that eye witnesses have faulty memories, that experts in the same field may reach vastly different conclusions based on identical data, and that witnesses may possess their own innate biases that color their testimony.  Yet, this does not stop such evidence from being admissible.

Similarly, the aforementioned reliability issues will not stop wearable device data from making its way into courtrooms across the Unites States. Theoretically, permitting such information may even remove potential biases from the human lens and offer some objectivity.  In addition, a court could find wearable device data admissible and then determine what weight to give it based on the quality of the data provided.

Objection! Privacy … Right?

The information gathered by an individual’s wearable devices is inherently personal. Wearable device data can be obtained from either the wearable device manufacturer or directly from the individual’s device.  From a privacy perspective, the threshold issues are whether or not the user has a reasonable expectation of privacy in the wearable device data, and if so, whether or not the user has consented to or authorized the disclosure of the data.

In terms of statutory protections, at first blush, heart rates and glucose levels seem like information that would be considered “protected health information” in the normal sense of the term. However, the Health Insurance Portability and Accountability Act covers only certain information maintained by certain medical entities, and it does not protect data stored on an individual’s wearable device.

Even if medical privacy laws did cover wearable device data, it would likely fall under an exception to HIPAA for certain legal requests. A number of wearable device companies have privacy policies that explicitly state that data may be released in the event of litigation.  For example, Fitbit’s privacy policy states that it will release data “reasonably necessary to comply with a law, regulation [or] valid legal process[.]” And Jawbone’s policy similarly states that it “may disclose your personal information to …  comply with relevant laws, regulatory requirements and to respond to lawful requests, court orders and legal process[.]”

Under common law, given the personal nature of the information on a wearable device, an individual could interpose an objection based on invasion of privacy to the disclosure of data from his or her wearable device. The best way to avoid such a claim is to obtain the individual’s consent or assert that there is no expectation of privacy with respect to the data on the device.  In the Lancaster, Pennsylvania criminal case, the police claimed that the alleged victim of the sexual assault had consented to their review of the data from her Fitbit.  In the Calgary case involving the personal trainer, she put the information on the device at issue herself and offered it into evidence to support her case.  In an employment case, defense counsel could argue that, by bringing the claim regarding a workplace injury or a disability or requesting emotional distress damages, the plaintiff is putting the information on the wearable device at issue.

Strategies for Use of Wearable Device Data In Employment Cases

  • Take the time to learn about the various types of wearable devices and how they work. Some may count moving your arms around as walking (which is a great morale booster, at best).  Others will not register cycling as activity.  Know what you are working with so you can determine whether the information is relevant and helpful to your case.
  • Just as you would include requests for social media information in your discovery requests, include requests for wearable device data.
  • Be prepared to address objections based on privacy interests and determine how you will show consent or authorization for the disclosure.
  • Consider engaging a qualified expert who can reliably explain and interpret the wearable device data.
  • Get to know your local analytics companies now; you are bound to need one in an employment case coming near you soon.

Karla Grossenbacher is a partner in Seyfarth’s Washington, D.C., office and Selyn Hong is an associate in Seyfarth’s San Francisco office.

By James L. Curtis and Craig B. Simonsen

iStock_000060649530_MediumSeyfarth Synopsis: The National STEPS Network provides a working model of an industry wide employee onboarding and safety training program.

We attended the World Safety Organization International Environmental and Occupational Safety and Health Symposium this week. A Keynote address at the Symposium, presented by Rick L. Ingram of BP America and Elizabeth A. Haley of the  Petroleum Education Council, discussed the National Service, Transmission, Exploration & Production Safety (STEPS) Network.

The STEPS Network was organized in the face of oil and gas (O&G) industry wide injury and fatality statistics that were alarming to both OSHA and the industry. In response, in 2003, OSHA invited industry representatives and safety consultants from all associated fields to attend a meeting to make a change.  STEPS set-up and implemented an employee onboarding and training system that is applicable across the industry.

The National STEPS Network includes operators and contractors in the O&G Exploration, Production and Product Transmission industry as equally valued members in partnership with OSHA, NIOSH, other trade associations, and educators across the country. The Network’s goal was to serve all producing regions of the United States and to eventually share the program internationally.

The STEPS system as established provided three tiers of training:

  • Tier One: New employee onboarding, a 7 1/2 hour safety orientation program;
  • Tier Two: OSHA 5810, Hazards Recognition and Standards for On-Shore O&G Exploration and Production; and
  • Tier Three: Leadership Course for O&G Leaders.

The STEPS leadership indicates that the effort has been successful, providing over 940,000 Tier One orientation sessions through 2010. The National STEPS program has continued to grow, with now twenty-two independent regional networks serving twenty O&G producing states. Eight of the networks have signed formal alliances with OSHA, and the National STEPS Network signed a formal Alliance with OSHA and NIOSH on December 2, 2014.

For other industry segments, and for employers, the STEPS Network provides a working model for safety industry-wide onboarding and training. It is a model that may provide other industries and employers with food-for-thought.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.