By Gerald L. Maatman, Timothy F. Haley, and Ashley K. Laken

Seyfarth Synopsis: True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions.  While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal.  Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace.  Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.

In January 2018, Makan Delrahim, the Assistant Attorney General for the Antitrust Division, said that the Department Of Justice (“DOJ”) had been very active in reviewing potential antitrust violations resulting from agreements among employers not to compete for workers.  (We previously reported on this announcement here.)  He said that he was “shocked” at how many there were and that in the coming months there would be announcements of enforcement actions.  He also mentioned that if the conduct occurred or continued after issuance of the October 2016 joint DOJ and Federal Trade Commission (“FTC”) Antitrust Guidance for Human Resource Professionals (the “Joint Guidance”), the DOJ may treat those agreements as criminal.

On April 3, 2018, the first of these announcements was made.  See “Justice Department Requires Knorr and Wabtec to Terminate Unlawful Agreements Not to Compete for Employees,” available at (“News Release”).  The DOJ advised that it filed a complaint in which it alleged that Knorr-Bremse AG (“Knorr”), Westinghouse Air Brake Technologies Corporation (“Wabtec”) and Faiveley Transport S.A., before it was acquired by Wabtec, entered into agreements not to compete for each other’s employees (“no-poach” agreements).  The DOJ contends that these were naked agreements – i.e., not reasonably necessary for a separate, legitimate business transaction or collaboration – and amounted to per se violations of Section 1 of the Sherman Act.  With the Complaint DOJ also filed a Competitive Impact Statement; Explanation of Consent Decree; and Stipulation and Proposed Final Judgment.  (See News Release.)

As noted, Mr. Delrahim stated that there were a number of these investigations ongoing, and in the News Release said that this Complaint was “part of a broader investigation by the Antitrust Division into naked agreements not to compete for employees.”  So more of these announcements can be expected, and some may be announcements of criminal prosecutions.

Many Employees Are Unaware That the Antitrust Laws Apply to the Employment Market

Often some business executives and human resource professionals are unaware that the antitrust laws apply to the workplace.  Executives who would never consider discussing prices with their competitors are unaware that discussing wages or salaries could have antitrust risks.  Similarly, employee covenants not to compete are commonplace and many executives have them in their own employment contracts.  So unless they have received specific training, an executive may be unaware of the antitrust risks associated with no-poaching agreements.  And up until recently even the most elaborate and detailed antitrust compliance policies that strictly prohibited discussing prices rarely addressed the exchange of wage and salary information or prohibited no-poaching agreements.

But the DOJ and FTC have now greatly ratcheted up their enforcement efforts with respect to alleged restraints in the employment market.  And with the DOJ and FTC taking the position that naked no-poaching agreements are per se unlawful and subject to criminal prosecution, the antitrust risks have been greatly increased — not to mention the costly class actions that are likely to follow any settlement with the DOJ.

Employers Should Investigate and Implement Compliance Programs

Thus, employers can no longer ignore the risk.  If they have not already done so, employers should consider:

  1. Conducting an internal investigation to determine whether the company is engaging in the informal gathering of wage, salary or benefit information; or whether it has entered into any no-poach agreements.  The investigation should be conducted or closely supervised by counsel with steps taken to preserve the attorney-client privilege.  Also, if it is discovered that the company has engaged in any “naked” wage-fixing or no-poaching agreements on or after October 25, 2016, then criminal counsel should be consulted as DOJ may treat such conduct as criminal.
  2. Implementing an antitrust compliance program that ensures that all management and human resources personnel are aware that they cannot: (1) engage in a naked wage, salary or benefits-fixing agreement with any other unrelated employer; (2) engage in the gathering or exchange of wage, salary or benefits information without full compliance with the Joint Guidance; or (3) enter into any no-poach agreement without prior approval of counsel.  Such individuals should, on an annual basis, be required to acknowledge in writing that they are aware of these prohibitions.  Also, anyone hired or transferred into any of these positions should be made aware of these prohibitions at the time they are hired or transferred.  These employees should also be advised that the DOJ is likely to treat naked wage/salary/benefit-fixing and no-poaching agreements as criminal and employees could be sentenced to prison for engaging in such conduct.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Kristina M. Launey and Myra B. Villamor

Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law – employment law – California’s Fair Employment and Housing Act.

Over the past few years, we have frequently written about the proliferation of demand letters and lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws.

One firm that pursued many web accessibility actions under Title III and California’s Unruh Act (including a success in the Bags N’ Baggage case decided in plaintiff’s favor by a California state court) is now going after employers. In recent demand letters and lawsuits, they are alleging that employment websites are not accessible to blind job seekers, in violation of California’s Fair Employment and Housing Act (FEHA), California’s corollary to Title I of the ADA.

While this blog, and Seyfarth’s Disability Access Team, are focused on disability access issues affecting places of public accommodation that provide goods and services to the general public (not employees, though many of our team members are employment specialists as well), this emerging litigation trend is worthy of our discussion here because it is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs’ attorneys.  But there is one big difference – the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations.

Title III is unique from other anti-discrimination statutes in that it requires (with exceptions) businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. FEHA prohibits discrimination against individuals in employment.  It requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation.  The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

In the cases filed thus far, such as those by Dominic Martin, Roy Rios, and Abelardo Martinez in Orange County and San Diego Superior Courts in California last week, the plaintiffs argue that they are blind residents of California who want to enter the workforce, attempted to apply using the defendant’s online application, but could not because it was inaccessible to individuals with disabilities. They claim the WAVE tool confirmed the website’s inaccessibility (an automated tool like WAVE, while useful, cannot be relied upon to determine whether a website is accessible or not, let alone useable by an individual with a disability).

In these lawsuits, the plaintiffs claim that they twice asked the defendant to remove the barriers and were ignored.  Plaintiffs also claim that removing the barriers would take only a few hours (which anyone who has worked in the website accessibility space knows is rarely if ever possible).  Plaintiffs allege these requests that defendant remove the barriers were requests for reasonable accommodation, though they were sent by the plaintiff’s attorney and not the actual individual seeking employment; thus possibly perceived as litigation demand letters rather than legitimate requests for reasonable accommodation.  The plaintiffs allege that the companies did not respond and that they have a policy to deny disabled individuals equal employment by refusing to remove the barriers on the website.  Each plaintiff alleges only a single legal claim for violation of FEHA, even expressly noting he is not asserting claims for violation of any federal law or regulation.

Will these claims find any success in the courts under the applicable law?  We will be watching.  In the meantime, businesses that have been focusing efforts on consumer-facing websites to mitigate risk under Title III should be aware of this new trend (if you have not already received such a letter).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Disability Access Team.

Edited by: Minh N. Vu.

By Brent I. Clark and Craig B. Simonsen

Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its results from a study conducted in 2016 and 2017 that looked at safety programs developed to prevent motor vehicle crashes.

The study included four focus groups conducted with thirty-three managers of employees that drive for work. The managers represented small businesses across four motor vehicle user groups: (1) first responders, (2) oil and gas workers, (3) light-vehicle drivers (e.g., workers who operate passenger vehicles for a variety of work purposes, such as salespeople, home health care workers, realtors, and food delivery workers), and (4) truck drivers.

NIOSH, in its Science Blog, related that vehicle crashes were a leading cause of workplace fatalities, with “1,252 deaths of vehicle drivers and passengers on public roads in 2016. In 2013, on-the-job crashes cost employers over $25 billion and led to 155,000 lost work days.”

The study found that the managers of truck and light vehicle drivers noted a range of minimal approaches to safety, such as mandatory vehicle inspections. Of particular note on the topic of the effectiveness of training is that managers indicated that safety materials needed to be designed that take into account the limited time that they and their drivers can devote to safety training. “Drivers’ varied work schedules and intense workload limit opportunities for group discussions about roadway safety. Managers said they and their drivers prefer concise, highly visual, and interactive communication products, such as short videos and simulations.”

NIOSH concluded that despite the human and financial costs of crashes, safety programs developed to prevent motor vehicle crashes are unlikely to work unless they are designed with the employers’ needs and constraints in mind. “This is particularly true among smaller and midsize employers, which need additional resources and knowledge to be successful.”

For employers, it is important to have safety programs in place that protect company employees. Employers can be sure that, given a workplace accident, agency inspectors may well be reviewing the employer’s policy documents and training materials, and will likely interview the injured employee about her training and understanding of the materials.

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.

Today, April 10th, is Equal Pay Day. At Seyfarth Shaw, we are commemorating Equal Pay Day with the release of two publications (click through below).

  1. The Trends and Developments in Pay Equity Litigation Report

This publication provides a brief overview of recent trends and developments in pay equity litigation and analyzes significant decisions and filings that have had an impact on those issues.

  1. The 2018 50 State Pay Equity Desktop Reference

This Desktop Reference was aimed at answering the most common questions we are asked about regarding the patchwork of different state laws that touch on pay equity.

We hope that you will find these resources helpful as you navigate the rapidly developing landscape of pay equity legislation and decisional law.

Please feel free to reach out to your Seyfarth attorney, members of Seyfarth’s Pay Equity Group, or the Group’s co-chairs Annette Tyman and Christine Hendrickson, with any questions.

By Esther Slater McDonald, Paul Yovanic Jr. and Thomas E. Ahlering

Seyfarth Synopsis: In light of the uncertainties surrounding lawsuits alleging violations of the Illinois Information Biometric Privacy Act (BIPA), the Northern District of California has taken a firm position on a plaintiff’s Article III standing. U.S. District Judge James Donato delivered opinions in In re Facebook Biometric Info. Privacy Litig., Case No. 15-CV-03747; 2018 U.S. Dist. LEXIS 30727 (N.D. Cal. Feb. 26, 2018) and Gullen v. Facebook Inc., Case No. 16-CV-00937; 2018 U.S. Dist. LEXIS 34792 (N.D. Cal. March 2, 2018), denying Facebook’s motions to dismiss for lack of subject matter jurisdiction in both cases. The court held that plaintiffs’ Article III standing was satisfied through mere collection of biometric information.

The decisions provide plaintiffs the ability to get their feet in the door and threaten businesses and employers alike. The court dismissed Facebook’s argument that Article III standing requires “real-world harms,” stating that the argument exceeds the law. Instead, the court held that a plaintiff has standing when they are deprived of procedures that protect statutorily protected interests, similar to the procedures outlined in the BIPA.

The In Re Facebook Decision

In In Re Facebook, plaintiffs allege that Facebook violated the BIPA when it unlawfully collected and stored biometric data on Facebook users without prior notice or consent. 2018 U.S. Dist. LEXIS 30727, *4. Plaintiffs’ claims arise out of Facebook’s “Tag Suggestions,” which identifies other Facebook users through scanning uploaded photographs. Id. Plaintiffs allege that Facebook creates and stores digital representations of people’s faces based on the geometric relationship of facial features unique to each individual. Id. Facebook moved to dismiss the class action, asserting that plaintiffs lacked standing under Article III because the collection of biometric information without notice or consent did not result in “real-world harms,” “such as adverse employment or even just anxiety.” Id. at *13.

The court denied Facebook’s motion to dismiss, holding that Facebook’s standing argument exceeds the law. Id. In support of its decision, the court looked to the plain language of the BIPA stating, “BIPA expresses the judgments of the Illinois legislature about the rights of Illinois citizens with respect to the collection of personal biometric data by corporations and businesses.” Id. at *10. There, the court pointed to the subsections of the BIPA in so much that it “vested in Illinois residents the right to control their biometric information by requiring notice before collection and giving residents the power to say no by withholding consent.” Id. at *11. Since the plaintiffs in this case were never offered the opportunity to withhold consent, the court rejected Facebook’s argument and found standing satisfied under the allegations. Id. at *12.

The Gullen Decision

The Gullen case was consolidated with In Re Facebook. The primary difference between the two actions is that the Gullen plaintiff is not a Facebook user, and he challenges Facebook’s practices as to non-users. See 2018 U.S. Dist. LEXIS 34792, *2. Similar to the In Re Facebook plaintiffs, the Gullen plaintiff alleges that Facebook stores non-user biometric data when it scans photographs to recommend additional user “tags.” Id. In denying Facebook’s motion to dismiss for lack of standing, the court relied on the reasoning in In Re Facebook, holding that standing is satisfied when there is an unconsented storage of biometric data. Id.

Analysis And Implications

Judge Donato’s disregard for real-world harm creates uncertainty on an otherwise untested statute. His decisions are inapposite to recent Illinois Appellate Court decision Rosenbach v. Six Flags Entertainment Corp., 2017 IL App (2d) 170317, which found that actual, real-world harm must be established to be considered an “aggrieved person” under the BIPA. Id. at ¶ 23. Where, Rosenbach closed the door to claims that did not involve some sort of actual, real-world harm, Judge Donato seems to have reopened that door (for purposes of Article III standing), leaving businesses and employers vulnerable to BIPA claims for collection of biometric data, regardless of whether the plaintiff is aggrieved. It is possible, though, that other courts may blunt the practical impact of Judge Donato’s opinions by holding that they do not address whether real-world harm is required to state a claim. While a mere technical violation of the BIPA may open the courthouse doors (at least in federal court), BIPA’s “aggrieved person” language may require a plaintiff to show a real-world harm to remain in court and state a claim under the statute.

By Ariel D. Cudkowicz, Anthony Califano and Timothy Buckley

On March 9, 2018, the Massachusetts Cannabis Control Commission (“CCC”) filed its much anticipated recreational marijuana Regulations with the Massachusetts Secretary of State.  According to the CCC, the Regulations are on track to be published in the Massachusetts Register on March 23, 2018.  The Regulations will become effective upon publication.  While the Regulations are comprehensive in many ways, for most employers the Regulations are most notable for what they lack, namely guidance regarding employer-employee rights and responsibilities.

Here is a link to the CCC’s website, where the final Regulations are available under the “Public Documents” tab.  The Regulations  will also be located in the Code of Massachusetts Regulations at 935 CMR 500.000, et seq.

What The Regulations Include

The copy of the final Regulations available at the CCC’s web site consists of 102 pages.  It reflects hard work, thoughtfulness, and input from a variety of stakeholders and experts.  Presumably by design, the Regulations focus heavily on licensing, manufacturing and sales, operations, and safety.  For example, the regulations detail how Marijuana Establishments (which include marijuana cultivators, manufacturers, retailers, and transporters, among others) must:

  • undergo a rigorous application and qualification process;
  • pay varying application and annual license fees;
  • apply for registration with the CCC for all of their directors, executives, managers, employees, and volunteers;
  • refrain from delivering marijuana products to consumers or allowing consumer consumption of marijuana on-site;
  • implement written operating procedures, including procedures regarding safety and sanitation;
  • package, label and transport marijuana responsibly;
  • train employees;
  • market and advertise responsibly, without appealing to individuals under the age of 21;
  • sell marijuana in certain limited amounts per transaction;
  • retain certain detailed records; and
  • allow CCC investigations and inspections.

What The Regulations Lack

Absent rom the Regulations is any specific, concrete guidance to most employers regarding employer-employee rights and obligations around recreational marijuana use.  Indeed, for employers who are not also Marijuana Establishments, the Regulations provide little clarification regarding the recreational marijuana law’s implications.  Readers may recall from our November 14, 2016 client alert about the Massachusetts recreational marijuana use law (available here) that the law states that it “shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”  This language means that employers do not have to permit employee use of marijuana at work or while working.  But the Regulations–like the recreational use law itself–says nothing about employer-employee rights or obligations regarding off-site and off-duty employee use of recreational marijuana.  The Regulations do not state that:

  • employers must allow off-site or off-duty employee use of recreational marijuana;
  • employers cannot fire (or refuse to hire) someone because of recreational marijuana use;
  • employees or applicants can sue employers who take adverse action against them because of recreational marijuana use; or
  • employers are subject to penalties for taking adverse action against employees or applicants because of recreational marijuana use.

In fact, the word “employers” appears once in the Regulations in the text of the following statement:  “Nothing in [the Regulations] shall be construed to limit the applicability of other law as it pertains to the rights of . . . employers . . . , except as otherwise provided in [the Regulations].”

Of course, employers must be careful to distinguish between the Massachusetts recreational marijuana use law and the Massachusetts medical marijuana use law.  As noted in our July 20, 2017 post (available here), the Massachusetts Supreme Judicial Court ruled that, as a result of the Massachusetts medical marijuana use law, certain employers may have to accommodate employees’ disabilities by permitting off-site and off-duty use of medical marijuana.

Simply put, the Regulations offer little guidance, good or bad, to non-Marijuana Establishment employers.  At this point, it is unclear whether the Massachusetts recreational marijuana use law will result in employment litigation and, if so, how litigation will play out in the courts.  In the meantime, employers would be wise to proceed with caution, and with guidance from experienced employment counsel.

By Kristen Peters

Seyfarth Synopsis: Even if bad Glassdoor reviews have you feeling like you need to fight back, employers should stay out of the ring, and instead implement social media policies that clearly define prohibited behavior and disclosures, while spelling out the consequences for violations. Employers must not retaliate against employees for their lawful out-of-office behavior.

People are used to sharing everything about their lives—from what they ate for breakfast to the funny name on their Starbucks Frappuccino. But this behavior can be scary for employers when current and former employees take to social media to complain about their jobs—or even defame their boss. Of particular interest are online platforms such as Glassdoor, which purport to provide “inside” information about working conditions, salaries, and company culture.

So what can an employer do when an employee posts a negative comment on Glassdoor about the company? The answer is … not much. The law often protects an employee’s off-duty speech. But the law does not protect defamatory speech, and it does not protect the disclosure of confidential, protected information. So proactive employers can take steps to make sure they are not unfairly smeared online and that their trade secrets are protected. We have a few suggestions in that regard.

What Are You Tryin’ To Prove: Don’t Get In The Ring

Websites such as Glassdoor, which has about 30 million monthly users, allow current and former employees to criticize or praise a company, typically through anonymous posts. Though many such sites screen critiques to prevent the posting of offensive comments and those that would disclose private information, they nonetheless present a conundrum for employers: Do you ignore criticism—even if it’s false—or do you respond to it? The former tactic can permit damage to an employer brand to go unchecked; the latter can make an employer look defensive.

In this new age of information, job applicants search employer review sites for information about companies. Responding to a negative review can help your brand if you do so in a way that shows the organization is genuinely committed to improving. But a response could also provide more fodder for further negativity, so it’s best to try to get ahead of the problem by making changes in-house, if necessary.

If your employees are posting on social media outside of working hours, California’s constitutional right to privacy can protect them from retaliation. Labor Code section 96(k) protects employees where they have engaged in lawful conduct asserting “recognized constitutional rights,” such as free speech postings on social media, occurring during nonworking hours away from the employer’s premises. A better avenue is to get ahead of the problem and educate employees about what they can and can’t post online about the company.

Put Your Robe On—And Implement a Social Media Policy

You can restrict free speech online for current employees with a social media policy (but only up to a point!). Employers should have a social media policy that prohibits posting confidential information about the company (and perhaps about posting anything about the company at all) without permission from the company’s public relations group. Every employee is required to follow the company’s legally compliant policies even if they are stricter than what the law would otherwise allow. If an employee violates your policies, that employee could be subject to employment discipline up to and including termination.

That said, there are limits to the restrictions employers can place on what employees can say about them online. The National Labor Relations Act protects the rights of workers to discuss wages and working conditions with other workers. These protections apply to posts on social media, so your social media policy cannot prevent employees from communicating with other employees online about the company’s pay or working conditions, such as might be the case with a Glassdoor review.

For example, in analyzing one company’s social media policy that forbade employees from making anonymous posts about the company online, the NLRB’s general counsel found that “requiring employees to publicly self-identify in order to participate in protected activity imposes an unwarranted burden on Section 7 rights [of the National Labor Relations Act]. Thus, we found this rule banning anonymous comments unlawfully overbroad.”

You Never Got Me Down—Employers’ One-Two Punch Combo for Dealing with Social Media

  • It is prudent for employers to prepare and implement a social media in the workplace policy in order to avoid risks of disclosure of confidential and proprietary information and claims of cyberbullying, harassment, and discrimination.
  • Social media policies should clearly articulate the legitimate business interests the employer seeks to protect, as well as provide clear definitions of prohibited behavior and private and confidential information, and spell out the consequences for violations of the policy.
  • Employers should use caution when disciplining employees based on social networking activities, as certain union and nonunion employee rights need to be considered.
  • An employer may discipline an employee for posting negative comments on a social networking site if the employee’s comments are offensive or inappropriate, and not related to employment issues, and should do so on a consistent basis.

Workplace Solutions: Employers should open up a dialogue with employees about social media and encourage them to bring grievances to Human Resources, instead of airing their grievances online. Employers should also avoid retaliating against employees for posting on social media outside of work hours, and implement social media policies that clearly articulate the penalties for posting confidential information, and any defamatory statements.

By Kristin G. McGurn and Bridget M. Maricich

Seyfarth Synopsis: A recent decision by the U.S. District Court for the Eastern District of Texas, part of the Fifth Circuit Court of Appeals, reaffirmed a growing circuit split regarding whether Title VII of the Civil Rights Act of 1964 preempts concurrent claims raised under Title IX of the Education Amendments Act of 1972. In Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler & Good Shepherd Med. Ctr., No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), Judge Amos Mazzant dismissed a former medical resident’s Title IX claims of sexual harassment and retaliation against the University of Texas Health Science Center at Tyler on the grounds that Title VII is the exclusive remedy for claims of employment discrimination on the basis of sex in a federally funded educational institutions. While consistent with precedent in the Fifth and Seventh Circuits, the decision stands at odds with prior decisions in the First, Third and Fourth Circuits holding that employees of institutions subject to both Title VII and Title IX may raise such claims under whichever statutory scheme they choose.   

Last March, we wrote about a watershed decision in the U.S. Court of Appeals for the Third CircuitDoe v. Mercy Catholic Medical Center, No. 16-1247 (3d Cir. 2017) – that held the nondiscrimination and anti-harassment protections of Title IX of the Education Amendment Act of 1972 apply to a private medical hospital’s residency programs, even those that lack a formal affiliation to an educational institution where Title IX has historically applied. The decision was also notable for holding that the concurrent applicability of Title VII of the Civil Rights Act of 1964 to such institutions did not preclude the plaintiff in that matter, a former resident, from filing her Title IX claim.   The Third Circuit’s decision contributed to a growing split among the federal Circuits regarding whether Title VII and its extensive administrative pre-requisites preempt concurrent remedies under Title IX for those individuals employed by institutions subject to both statutes.   In Doe, the Third Circuit joined the First and Fourth Circuits in holding that in a covered individual employed by such an institution may seek remedy under whichever statutory scheme he or she chooses. These decisions contradict case law in the Fifth and Seventh Circuits, which have affirmatively held that Title VII and its carefully crafted statutory administrative pre-requisites are the exclusive remedy for sex discrimination claims brought by employees of institutions covered by both Title VII and Title IX.

A recent decision by the U.S. District Court for the Eastern District of Texas – within the Fifth Circuit – put this precedent to the test. In Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler & Good Shepherd Med. Ctr., No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), a former medical resident at the University of Texas Health Science Center (“UTHSC”) and Good Shepherd Medical Center (“Good Shepherd”), alleged that her supervising resident subjected her to continuous verbal, physical and sexual harassment and that, when she reported his conduct, the hospital discriminated against her by failing to address the conduct and retaliated against her by suspending her indefinitely from the program. Slabisak asserted that, among other things, UTHSC and Good Shepherd violated her rights under both Title VII and Title IX. UTHSC moved to dismiss Slabisak’s Title IX claims on the grounds that Title VII preempted any recovery under Title IX.

Judge Amos Mazzant of the Eastern District of Texas agreed. In a brief decision, Judge Mazzant re-affirmed Fifth Circuit precedent, noting “the basis for Plaintiff’s Title IX claims – deliberate indifference and retaliation – revolve around the allegations that Plaintiff was subjected to a hostile work environment, which UTHSC failed to address and correct; and moreover that UTHSC retaliated against Plaintiff when she informed them of said hostile work environment. Such claims fall within the exclusivity of Title VII – employment discrimination on the basis of sex in a federally funded educational institutions.” Id. at *7-8. Judge Mazzant accordingly dismissed Slabisak’s Title IX counts, but permitted the Title VII claims to move forward. Of note, none of the parties appeared to challenge the notion that Slabisak, as a resident, was an employee for purposes of Title VII.

What does this mean? Medical centers, hospitals, and other healthcare institutions providing accredited teaching and training programs, particularly programs formally affiliated with educational institutions, should be familiar with the precedent in the federal Circuits in which they operate. Though the substantive protections of Title VII and Title IX do not differ substantially, the process for redress, the standards of liability, and the remedies may differ. Most notably, Title VII requires exhaustion of administrative remedies. Employees seeking redress under Title VII must first file a complaint with the Equal Employment Opportunity Commission (“EEOC”) or similar state administrative agency prior to filing suit in state or federal court. Title IX includes no such prerequisite. Individuals subject to the protections of Title IX may file a complaint with the Department of Education Office for Civil Rights (the DOE version of the EEOC), but they may opt to forego this step and file suit directly in court. The statute of limitations for Title VII claims – within 180 or 300 days, depending on the state – is much shorter than the statute of limitations for Title IX claims. Title IX does not include its own statutory time limitation and typically follows state tort law limitations, which are usually two or more years. Finally, the type of individual remedies available under Title IX is subject to some murky case law, but generally Title IX plaintiffs may seek actual and compensatory damages, injunctive relief, and attorneys’ fees.

This decision further highlights the importance, particularly in the current climate, of responding effectively and expeditiously to all complaints of discrimination, harassment, and retaliation. Healthcare institutions can mitigate risks associated with such complaints – whether Title VII or Title IX applies – by:

  • Maintaining wide-open, easily accessible and well-communicated procedures, using multiple avenues, for reporting, investigating, and resolving complaints of discrimination, harassment, and retaliation.
  • Ensuring those physicians, administrators, managers, and faculty who are most likely to witness or hear of reports of risky behavior are well trained in not only what and how to report, but also how to empower bystanders and effectively and sensitively manage those situations and any reports they receive.
  • Documenting the institutions actions with respect to all reports of discrimination, harassment, and retaliation – from report through investigation and resolution – so that the institution’s good actions and consistent approach can be proven in the event of an administrative charge or lawsuit.

If you have any questions regarding these issues, please contact the authors, your Seyfarth attorney or a member of the firm’s Health Law Group.

By Rashal G. Baz, Katherine Mendez, and Chelsea D. Mesa

Seyfarth Synopsis: Employers are now being presented with more options to outsource workplace complaints through third party companies and mobile apps. This may create an ease in grievance reporting for the employee, but does not necessarily shield employer liability.

Harassment in the workplace is not a novel issue, but with the rise of national and global movements such as #MeToo and Time’s Up — it has been on the forefront of our social, political and business conversations. Hollywood has cast a spotlight on sexual harassment and the sometimes imperfect protocols in place to address concerns. These issues are appearing in the headlines, TV shows, and social media platforms with the potential impacts of destroying a company’s goodwill and bottom line.

In response to this outcry and several industries’ spotting an opportunity to get involved, the technology-driven community has responded with mobile apps, anonymous grievance non-profit websites, new third-party consulting companies, and modernized hotline services. The goals of these new technologies and strategies is to heed complaints and optimize an employer’s response.

The Current State of Things

Before touching on the reporting outlets, it is critical to understand why a demand for such services exist. Historically, there have been studies that note the resistance to workplace harassment reporting. This could be attributed to a fear of employer retaliation, unwanted peer attention, distress in confronting a perpetrator or lack of trust in workplace changes following such a complaint. Sometimes employees simply do not know or recall where to find the protocol for filing harassment incidents. These are among the reasons the Equal Employment Opportunity Commission and other organizations shine a close light on the response procedures employed by a company.

Many employers use a host of different practices designed to make reporting as simple and effective as possible. These range from traditional reporting to a supervisor or HR in writing or in person, to the use of a designated ombudsman, email submissions and hotline phone numbers. The goal is to encourage the reporting of complaints, so they can be resolved.

A New Twist on Reporting

Mobile Applications: Glued to our phones, it only follows that harassment and employment complaint apps have been created for the workforce. When reporting an issue is easy and familiar, it stands to reason that more information will be transmitted to the business. One example app uses a subscription-based service employers can purchase and integrate into internal procedures. The app allows workers to identify themselves and their location or remain anonymous and pick from different pre-set messages to indicate the nature and severity of the concern. These apps also allow an employee to include documents, images or videos that are sent to their choice of two to four default managers who will receive the correspondence. These services claim to provide a safe space for raising concerns, free from external interference.

Consulting Groups: Third-party consulting groups have also responded to the need for something new by creating company-specific online environments where employees can file complaints. In turn, the consultants will assess the complaint, write an action plan on what type of investigation is needed, and provide an external “expert” to do a workplace investigation for inappropriate behavior. These companies tout experienced personnel that investigate the issue while avoiding the purported “inherent bias” human resources personnel may hold toward the complainant or accused employee.

Hotline Services: Outsourced workplace harassment and discrimination hotline services are not new, but seemed to have stepped up their game as well. Typically, hotlines provide a company-specific phone number, voicemail box and email address where employees can voice grievances. Instead of merely transmitting the collected data to employers, the third-party services are now also offering more involvement in employee complaints. Several now offer to have “experienced” human resource professionals produce a report that allows the employer to handle the issue internally, or chose an external route to be handled by a “team of experts,” similar to the aforementioned consulting process.

Will This Help My System?

While additional reporting processes can be beneficial to obtaining data and addressing complaints, using an external service does nothing to change any of the employer’s obligations. If an employer’s practices and implementation of strategy aren’t already strong, implementing the “hot new thing” would simply serve as a rearrangement of chairs on the deck of the Titanic, and not really solve much. In considering whether to add this to its arsenal, employers would have to trust that the individuals involved with their complaints are, in fact, qualified to handle them. Failures along the way will still fall on the shoulders of an employer.

An employer’s uniform response to delicate situations can help defend against retaliation claims stemming from harassment reports; however, it is difficult to remember, and thus repeat, how you responded to a previous situation without accessible and thorough documentation. Outsourcing the complaint to a third-party technology may assist in providing a platform employers can reference when handling a new grievance. However, these services can also expose employers to cybersecurity issues. This false sense of security can end in costly litigation if you do not audit these services on an annual basis. Complaints lost in the cloud will result in claims against employers, not the app.

These external systems also do not address the alleged “bias” concern plaintiffs often argue exist. These systems would still be contracted and paid for by the employer, who will have likely partnered with the third party to set up the system. And as the third party works with the employer over time and learns its business, a relationship between the parties (and a desire to keep the employer happy so the relationship continues) will likely develop. It is unclear how a third party will avoid the same arguments of bias that an internal process will face. This further rings true because the relationship’s collaborative nature still has the employer making the ultimate decision on next steps in response to a complaint.

On the flip side, employers who choose not to utilize such services may not be out of reach of their effects. There are organizations creating anonymous hotlines that allow employees from any company to submit a report that in turn is “instantly” sent to who they deem the appropriate individuals within the complainant’s organization. And Silicon Valley has created smartphone apps that allow employees to anonymously report an incident to the company’s chief executive and board. This places the burden on those who receive these complaints, who may not be the person within an organization able to respond quickly enough, to send them through the proper channels. Even though these systems may provide another means for employees to feel as though they have raised a concern, there is no guarantee it gets into the company and to someone who can address it.

The Takeaways

There have been many assessments on how to minimize incidents of harassment and create a zero-tolerance environment for such scenarios. Initially, these new systems may seem like the right solution, but if you are integrating protocols that are not followed by the head of the company to the grassroots, a palpable workplace change and a legally sound grievance procedure is unlikely.

The benefit of these outlets include the creation of additional accessible channels workers may feel safe utilizing, but does not guarantee the complaint gets in the hand of the person who has the power to address it. Using a third party to assess complaints may avoid alleged HR biases in theory, but the company’s relationship with the service and ultimate decision-making ability weakens the practicality of that benefit.

These resources may represent the future of reporting and thus require employers to proactively adopt policies and training to avoid being blindsided by their arrival. Ultimately, the release of numerous online lists pointing out sexual harassment perpetrators and the rise in anonymous direct-to-company complaints may create an ethical duty to prepare your staff on how to process the information. Should you chose to contract these grievance reporting services, it would be wise to conduct internal training on how to utilize it and what human resources/supervisors should do when they receive notice of a complaint. Finally, evaluate and update your workplace harassment and reporting policies.

Ensure your company has the internal knowledge it needs to react when the time comes. And always feel free to reach out to your favorite Seyfarth employment lawyer for guidance on how to implement and maintain the most effective and appropriate processes as we march toward the future of harassment reporting.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By Julia Gorham

Seyfarth Synopsis: The global market for wearable devices continues to grow and has been embraced not only by consumers but organizations as well. Wearables use in the workplace is here to stay, but employers should consider the risks at the outset.

Wearables — where to start? With the smartwatch languishing in my junk drawer, the step tracker, heart rate monitor, security pass, two smartphones (private and business), smart clothing or the Santa list with a virtual reality headset?

It is hardly surprising that ABI Research predicts 500 million wearable devices will have been sold by 2021. Not counting the apps. If our personal time is tracked by wearables, what happens on the job? Organizations are embracing wearable technology to engage with their employees, monitor movements and productivity, to assess wellbeing, and even to market/cross-sell new products.

Using technology in this way is not without risk, but it is here to stay. Data privacy risks, ethical considerations (such as the right to a private life), and continued liability for employers all need to be considered at the outset of implementing programs using wearables for work. One of the biggest considerations is what is the data used for? One obvious use of such data is how long staff spend working are their designated site, but do they know and understand the extent to which that data is monitored, what type of analytics are applied to it and even what other decisions are being made using that data that the employees do not see? In operating wearables for work (and collecting, using and storing data from them), organizations need to comply with relevant legislation/guidelines, including being mindful of the duty of care to their staff, be transparent with their employees, and consider wider ethical issues.

In the health and wellbeing space: Workplace schemes encouraging staff movement and activity, via apps or subsidized sports bands for example, are not new and are an established part of corporate culture for big businesses. Good for health, wellbeing and engagement in the employee population, insurance companies also recognize these benefits and adjust premiums accordingly. But do employees know what the data is used for? Some of this data may be used to look at employee attendance by employers and could form the basis of disciplinary action for example — is that made clear at the outset? If an individual were to suffer an accident or over-exert themselves during a fitness drive it is not a stretch to assume that, even if waivers have been signed by staff, liability (including vicarious liability) will still be placed firmly at the employer’s door.

For senior executives, often an organization’s biggest asset, wearable technology can monitor sleep patterns, stress levels and other more invasive biometrics that will help an organization manage its people risks. Even with consent to such a program, would that remove liability where a senior employee suffers a heart attack or stress-related illness as a result of their role? Unlikely, the normal legal tests would still apply. For staff in ‘high risk’ roles, for example pilots, wouldn’t a heart rate monitor or other device that can track and monitor extreme or abnormal changes in biometrics be important — could it help predict or stop human-error disasters?

In terms of movement and productivity assessment — wearable technology can be a huge asset to organizations with thousands of staff — keeping track of where people are. For example, you can monitor ‘hot spots’ for office infrastructure and plan effective working spaces. However, many countries have significant privacy laws and a legal right to a private life. If these technologies continue monitoring and tracking out of hours (including breaks) can the benefits of safety justify the impact to privacy/private life? In terms of productivity, the world’s biggest e-commerce companies now track their employees’ productivity and efficiency via wrist bands embedded with microchips against metrics which are often determined relative to the speed at which robots can operate. To what extent do employers have a responsibility to maintain human oversight of their staff even when such wearables are being used and to what extent are they reviewing potentially high rates of fatigue or burnout?

Much has already been made about potential inherent discrimination that may be written into algorithms. To what extent will employees in the future have the ability to challenge material decision making made by or data collected by devices, programs, technology on the basis of underlying discrimination. For example, selection for poor performance discussions, selection for redundancy or other serious impact to an employee’s career. If the underlying data or collection methodology is allegedly compromised, then it potentially follows that an organization could be held to account for relying upon it. Human oversight should always be included as part of any decision making process.

In terms of identifying fraud, the ability to track staff movements is extremely useful. Local laws usually provide that employers can process and use data to identify crimes or serious misconduct/dishonesty offences — but it is always going to be important to have made staff aware of this type of monitoring before implementation and ensure compliance with local law/codes of practice.

Finally, let’s look at France and the decision to give employees the right to time off from technology — to discourage emails out of hours, over the weekend or on annual — leave unless business critical. In a connected world where staff often have smartphones issued by their employer or ‘bring your own device’ programmes pushing native work emails onto their personal phones and now smart watches sending instant messages — what obligation do companies have not to overburden their staff? Many employees do not want colleagues whatsapping them on a Saturday when it could wait until Monday.

For many multi-national employers and particularly those working across time zones, the French approach goes too far; it also depends on sectors, cultural norms in jurisdiction and expectations on workers in terms of productivity. For most of us, the view is that legislation is not needed in this area but good corporate culture and management leadership is. Unions and collective labour organizations are taking up this mantle in some jurisdictions and negotiating with companies for workers’ rights in this area.

However your organization chooses to adapt and adopt new technologies, be clear about the drivers for change, the expectations on your staff and be balanced about business needs. It is increasingly important to carry out risk assessments on a rolling basis to check if your technology programs continue to meet the aims they were introduced to address and remain fit for purpose or need to be adapted to reflect changing laws or social and cultural norms.

Julia Gorham is a partner in our Hong Kong office and works closely with leading employers assisting them with their cross border matters, particularly in the Asia Pacific region.