By Annette TymanChristy Kiely, and Michelle Mellinger

Seyfarth Synopsis. The Center for Investigative Reporting has issued a FOIA request to the Office of Federal Contract Compliance Programs (“OFCCP”) for all Type 2 Consolidated EEO-1 Reports filed by federal contractors from 2016-2020.  Contractors have a 30-day period in which to file objections to the disclosure of their Type 2 reports.  Employers can file objections via an online OFCCP Submitter Notice Response Portal or by email to OFCCPSubmitterResponse@dol.gov.  If a company plans to file objections, but needs more time, it should immediately submit a request for an extension to the same email address.

While some companies have chosen to voluntarily disclose aspects of their EEO-1 Reports, others have carefully guarded the confidentiality of this data.  If your business would like assistance filing objections with the OFCCP, please contact a member of Seyfarth’s People Analytics team.

The FOIA Request at Issue

Will Evans, a reporter with The Center for Investigative Reporting (“CIR”), initially submitted a FOIA request to OFCCP in January of 2019, seeking the Type 2 consolidated EEO-1 reports for all federal contractors for 2016.  Some contractors may remember being notified, and possibly objecting, to the FOIA request at that time.  Since then, CIR has amended its FOIA request several times.  The most recent was on June 2, 2022, when CIR expanded the request to reach all federal contractors and first-tier subcontractors for 2016-2020 Type 2 EEO-1 Reports.

Federal agencies are required to give notice to parties when their submitted information becomes the subject of a FOIA request.    On August 19, 2022, OFCCP published in the Federal Register a “Notice of Request under the Freedom of Information Act for Federal Contractors’ Type 2 Consolidated EEO-1 Report Data.”  OFCCP estimates that roughly 15,000 unique covered contractors merit notice here.

While The Center for Investigative Reporting FOIA request only seeks reports of federal contractors and subcontractors, the practical reality is that the request may encompass a potentially large number of businesses that are not covered contractors as well.  This is for a number of reasons, including: (i) employers sometimes misidentify as federal contractors in their EEO-1 filings; (ii) all entities of a corporate family are identified as federal contractors in the EEO-1 data if any of them are covered (even if some affiliates are not covered contractors); and (iii) OFCCP may erroneously identify companies as covered contractors or subcontractors, when they are not.

EEO-1 Reports and FOIA

EEO-1 Reports must be filed annually by all employers with 100 or more employees, and by OFCCP-covered federal contractors and first-tier subcontractors with 50 or more employees.  There are several types of EEO-1 Reports, depending on the organizational structure of the reporting entity.

The Center For Investigative Reporting’s FOIA request seeks only “Type 2” EEO-1 Reports — not to be confused with “Component 2” reports, which for a brief period required the production of compensation data.  “Type 2” Reports are the Consolidated Reports required of multi-establishment employers; they include aggregated data for all employees of the company — at headquarters as well as all establishments — categorized by race/ethnicity, sex, and job category.

EEO-1 Reports are promulgated and collected through a joint effort of the EEOC and the OFCCP called the EEO-1 Joint Reporting Committee. The EEOC is bound by statutory confidentiality under Title VII, and cannot make its compliance survey data public.  In fact, the EEOC provides that such data will only be released to a litigant who has filed a lawsuit.  OFCCP regulations state that “[EEO-1] Reports filed pursuant to this section shall be used only in connection with the administration of [EO 11246], the Civil Rights Act of 1964, or in furtherance of the purposes of the order and said Act.”  OFCCP takes the position based on a 1974 D.C. Circuit case that they are not bound by the EEOC’s confidentiality prohibitions.

FOIA is a federal law that provides for public access to information provided to the government upon request.  FOIA has several delineated exemptions that can be invoked on a case-by-case basis.  The most common objection to the release of EEO-1 data is FOIA’s “Exemption 4,” which protects the disclosure of “trade secrets and commercial or financial information” that is privileged or confidential.

When a federal agency believes that information requested from it may be protected from disclosure under FOIA, it must notify the parties who submitted the information before it makes a determination.  Submitters must be given a “reasonable time” to respond, which here OFCCP has set at 30 days.

If a company desires to object, but cannot do so within the 30-day period, it should request an extension from the OFCCP as soon as possible. Extension requests are considered on a case-by-case basis. If enough contractors seek extensions, the Agency could find that 30 days is not an inherently “reasonable period” and extend the objection period for all contractors.

What Should a Company Do?

Companies that have historically kept their EEO-1 data confidential and wish to maintain that confidentiality, should take immediate steps to file an objection to the FOIA request.  Such employers must act promptly to protect their information by filing objections or seeking an extension no later than September 19, 2022. A company that fails to respond by September 19, 2022 (without obtaining an extension) “will be considered to have no objection to the disclosure of the information” according to the OFCCP.

Any objections filed must include “at minimum” the following:

  • The contractor’s name, address, and contact information
  • The specific information in the EEO-1 Report considered to be a trade secret or commercial or financial information
  • Facts to establish the data as commercial or financial in nature
  • Whether the information is customarily kept private or closely held, the steps taken to protect its confidentiality, and to whom it has been disclosed
  • Whether the company believes the government has provided an express or implied assurance of confidentiality or, to the contrary, whether at submission it was implied that the government would disclose the information
  • How disclosure of the information would harm the interest of the contractor (e.g., harm to economic or business interests)

OFCCP will evaluate the objections, in light of its regulations and other law, and provide notice  of its decision whether to disclose the information.

We encourage you to contact your legal representative or a member of Seyfarth’s People Analytics team as soon as possible if your organization is interested in filing an objection with the OFCCP.

By Rachel A. Duboff and Erin Dougherty Foley

Seyfarth Synopsis: Employers can take precaution against discrimination claims by ensuring they have legitimate, nondiscriminatory reasoning for their decision-making. An honest explanation of their behavior makes it credible.

The Eighth Circuit’s recent opinion in Banford v. Board of Regents of UM affirms the steps required to prove a discrimination claim. Plaintiff Jen Banford, a gay woman, was the women’s head softball coach and part-time Director of Operations for the women’s hockey team at the University of Minnesota Duluth (“UMD”). By the 2014-2015 season, all of the women’s hockey team staff were likewise gay women. That season, UMD’s new Athletic Director fired the women’s hockey head coach, and Banford’s contract, along with two assistant coaches, were also not renewed. While Banford was offered the opportunity to continue as the softball head coach, she instead left UMD altogether. She sued UMD alleging discrimination under Title VII, claiming that she was fired because of her sexual orientation.

The Eighth Circuit affirmed the district court’s grant of summary judgment to UMD, finding that Banford failed to meet the required test to prove discrimination, as well as failed to create an inference of pretext on behalf of UMD’s explanation for its behavior. In so doing, the court emphasized the key points required to prove a discrimination claim:

To survive summary judgment for discrimination under Title VII, an employee must show direct evidence of discrimination or an inference of unlawful discrimination, including sufficient evidence of pretext.

To show an inference of discrimination, the McDonnell Douglas burden-shifting framework must be met:

  • The employee must first establish a prima facie case of discrimination
  • The burden then shifts to the employer to show a legitimate, nondiscriminatory reason for their behavior. This showing is a low burden.
  • The employee next must offer evidence that the employer’s explanation is mere pretext (the legal term for “a lie”) for intentional discrimination.

An Employer’s Legitimate, Nondiscriminatory Reason Must be Credible

The legitimate, nondiscriminatory reason for the employer’s actions must be a credible, honest explanation as to their behavior. Here, UMD said it let Banford go from her position on the women’s hockey team staff because it is typical to fire other staff members when firing a head Division I coach. The position of Director of Operations works closely with the head coach, and therefore that position should be open for a new coach to hire as part of their own staff. Because the burden for offering a legitimate, nondiscriminatory reason is low, UMD carried their burden.

For an employer to prevail, the rationale or reason only needs to be credible. Courts do not examine an employer’s business decisions; they only examine if the employer offered an honest explanation of their behavior. The Eighth Circuit found UMD’s explanation — that they wanted a new coach to choose their own Director of Operations — to be credible, and thus the burden shifted.

Pretext Can be Shown If Similarly Situated Employees are Treated Differently Based on a Protected Class

The Eighth Circuit held that Banford did not meet her burden of showing UMD’s reason for firing here was pretextual because there was no varying treatment of similarly situated employees based on a protected status. The term “similarly situated” refers to fellow employees who hold the same duties or roles but are outside of that employee’s protected class.  For example, in a gender discrimination case brought by a female clerk, courts would look at the treatment toward a male clerk.

Banford failed to show pretext because the employees not fired were also gay, and therefore in the same protected class. Even more, the staffers not fired did not share the same roles: they reported to different people, had different duties, and different domains. Therefore, no pretext existed because the staffers UMD did not fire were not similarly situated as to Banford.

Ultimate Burden Must be Met for a Discrimination Claim to Succeed

An employee has the ultimate burden of proving they have been discriminated against, which Banford failed to prove here because two staffers who had their contracts renewed were also gay. In order to succeed on a discrimination claim, the differentiating factor must go to the protected class. Absent that, as occurred here, the employer will, generally, win on summary judgment.

Key Take-Aways when Making Termination Decisions:

  • Employers must have an honest explanation for their termination decision that is not based on any protected status.
  • Employees of different protected classes who hold the same duties or roles should not be treated differently based on that difference.
  • Employers should thoroughly document their reasoning for terminating an employee that way, if memories fade, those documents can be used to refresh what happened.

If you have questions regarding this article, please contact the authors or your Seyfarth attorney.

By Adam R. YoungMelissa A. Ortega, A. Scott HeckerJames L. CurtisBrent I. ClarkBenjamin D. Briggs, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On August 11, 2022, the CDC, through a press release, eased its COVID-19 guidance to “help us move to a point where COVID-19 no longer severely disrupts our daily lives,” while acknowledging that the pandemic is not over.

Citing the fact that many Americans now have some level of immunity to COVID-19 and the arsenal of tools to combat COVID-19, including vaccinations, the Center for Disease Control (“CDC”) eased its COVID-19 guidance. Specifically, the CDC eased isolation recommendations for individuals who are not up to date with their vaccines, individuals who are exposed to COVID-19, and individuals who have or suspect they may have COVID-19.

Updated Guidance for Individuals who are Not Up to Date with Vaccines

The CDC now recommends the same quarantine and isolation guidelines for those who are not up to date with vaccines as those who are up to date with vaccines.

Previously, the CDC recommended that individuals who were not up to date on their vaccines and were in close contact with someone with COVID-19 isolate for at least 5 days. Now, all individuals regardless of vaccination status, do not need to isolate if they are in close contact with someone with COVID-19.

Updated Guidance for Individuals who are Exposed to COVID-19

Previously, the CDC recommended quarantine for people who were exposed to COVID-19. Now, the CDC solely recommends that individuals exposed to COVID-19 wear a “high-quality” mask for 10 days and test on day 5, regardless of vaccination status.

Updated Guidance for Individuals who Have or Suspect they May Have COVID-19

For those who test positive, the CDC is now recommending isolation for at least 5 days (down from 10 days). If a person must be around others in their home or in public, the CDC recommends the use of a high-quality mask. If, after 5 days, an individual is fever-free for at least 24-hours without the use of fever-reducing medication, and other symptoms (if any) are improving, those individuals may end isolation, but should continue to wear a high-quality mask through day 10 and avoid being around other who may be at risk of serious illness until at least day 11.

Individuals who test positive and are experiencing moderate illness, i.e. difficulty breathing, or severe illness, i.e. hospitalization, should isolate at least through day 10. For those who experience severe illness or have weakened immune systems, the CDC recommends they consult with their healthcare provider before ending the isolation period.

For individuals who end isolation after testing positive but symptoms worsen, the CDC recommends they restart the isolation period.

For individuals who are sick and suspect they may have COVID-19 but do not have positive test results, the CDC also recommends isolation until they obtain a negative test result.

The CDC continues to promote the importance of staying up to date with COVID-19 vaccines to protect individuals from serious illness, hospitalization, and death and emphasizes that social distancing is also one of many components recommended to protect oneself and others. The CDC also updated its Quarantine and Isolation guidance for individuals with COVID-19 and will update the Quarantine and Isolation Calculator, which will be available here when updated.

Many employers are reevaluating their policies in light of the recent CDC changes.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Minh N. Vu

Seyfarth Synopsis:  The California Court of Appeals puts an end to lawsuits against online only businesses in California and calls out DOJ and Congress for inaction.

In a precedent setting, 35-page opinion, the California Court of Appeals yesterday closed the door on California lawsuits brought against online only businesses, agreeing with the U.S. Court of Appeals for the Ninth Circuit that websites are not “public accommodations” covered by Title III of the ADA.  It also held that creating and maintaining an inaccessible website cannot constitute intentional discrimination under the Unruh Act.

The blind plaintiff in Martinez v, Cot’n Wash, Inc. alleged that the online only retailer had engaged in disability discrimination in violation of California’s Unruh Act by having a website that he could not use with his screen reader software.  There are two ways to establish a violation of the Unruh Act: prove (1) intentional discrimination; or (2) a violation of Title III of the ADA.  Martinez claimed that he had alleged sufficient facts to establish a violation under both theories.

Martinez struck out on both counts.

With regard to the intentional discrimination theory, Martinez argued that the retailer’s failure to take action in response to his demand letters complaining about the website’s accessibility barriers constituted intentional discrimination.  The Court disagreed, reiterating that “[a] claimant may not “rel[y] on the effects of a facially neutral policy on a particular group… to infer… a discriminatory intent.” The Court also said that “a failure to address known discriminatory effects of a policy” is not sufficient to establish intentional discrimination under the Unruh Act.

As for Martinez’s claim that the online-only retailer had violated Title III of the ADA, the Court opined that “even after examining the language of the statute and considering maxims of statutory interpretation and legislative history pre-dating passage of the law, we remain without a clear answer as to whether a purely digital retail website can constitute a ‘place of public accommodation’ in the context of Title III.”  The Court thus turned to what it called “the third and final step in the interpretive process.”   The Court explained:

In this phase of the process, we apply reason, practicality, and common sense to the language at hand.  Where an uncertainty exists, we must consider the consequences that will flow from a particular interpretation.  Based on such an analysis, we ultimately find dispositive that adopting Martinez’s proposed interpretation of “place of public accommodation” would mean embracing a view that Congress (through its inaction since the enactment of the ADA) and the DOJ (through its unwillingness to draft regulations) have both tacitly rejected.

The Court observed that since 2010, Congress and the DOJ recognized the need to address through legislation or regulations whether and under what circumstances a website constitutes a “place of public accommodation” but chose to do nothing, suggesting that neither the DOJ nor Congress “officially endorses” the coverage of websites by the ADA.  The Court stated that:

Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification.  To the contrary, it is a reason for us not to do so.  This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislative fact-finding.

In short, the Court said it was not its place to “adopt an interpretation of the statute that is not dictated by its language, especially in the face of… legislative and agency inaction.”

Martinez will likely file a petition for review by the California Supreme Court, but that court’s review is entirely discretionary and less than five percent of petitions are granted.  Thus, this decision will likely stand as binding precedent on all California trial courts.

The significance of this decision for online only businesses cannot be overstated.  It means that plaintiffs cannot successfully sue them for having inaccessible websites in California state or federal courts.  As discussed, the U.S. Court of Appeals for the Ninth Circuit has long held that a website is not a place of public accommodation covered by Title III of the ADA.  This decision will certainly reduce the number of lawsuits brought in California state and federal courts by plaintiffs enticed by under the Unruh Act’s $4,000 minimum statutory damages provision.

The data underscores the importance of this decision.  Relatively few website accessibility lawsuits have been filed in California federal court – most likely because of the Ninth’s Circuit’s position on online only businesses.  California plaintiffs have favored state court where a few judges, until now, were willing to allow suits against online only businesses and even found that having an inaccessible website could constitute intentional discrimination under Unruh.

Businesses must keep in mind, however, that this decision has little impact on claims relating to websites that have a nexus to a physical facility where goods and services are offered to the public.  Such websites would likely be considered a benefit or service of a brick and mortar place of public accommodation, and be covered by Title III’s non-discrimination mandate.

Edited by Kristina M. Launey

By Adam R. YoungA. Scott Hecker, Patrick D. Joyce, Mark A. Lies, II, James L. CurtisBrent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The WHO and the CDC have updated statements and FAQs on the monkeypox disease, declaring the disease a “Public Health Emergency of International Concern.”

Taken from https://www.cdc.gov/poxvirus/monkeypox/response/2022/world-map.html

On August 4, 2022, the Biden Administration, through the U.S. Department of Health and Human Services, joined the WHO in declaring a public health emergency. Apart from the CDC’s guidance for congregate and healthcare settings, neither the CDC nor OSHA has released any guidance related to monkeypox in the workplace or otherwise identified monkeypox as a workplace hazard.

As always, Seyfarth’s Workplace Safety and Health team will advise employers on any direct impacts as this situation develops.

On July 23, 2022, the WHO declared monkeypox a “Public Health Emergency of International Concern” and issued a set of Temporary Recommendations to address a multi-country outbreak of monkeypox. These recommendations apply differently to countries with no known transmission versus those with known human-to-human transmission. For countries with known human-to-human transmission, the WHO recommends implementing response actions with the goal of stopping human-to-human transmission, implementing strategies to protect vulnerable groups, and engaging with affected communities to raise awareness about monkeypox transmission. The WHO also recommends various public health measures such as increasing laboratory testing capacity and assisting local public health authorities with creating messaging for those who contract or are exposed to monkeypox.

No Specific Employer Action Plan Required at This Time

Unlike COVID, which is transmitted in the air, monkeypox’s primary route of transmission is through skin to skin contact with someone who has the disease. Accordingly, with the exception of the healthcare industry, monkeypox is currently viewed as a public health hazard and not a workplace health hazard. As such, there are no specific federal, state, or local rules that address monkeypox precautions in the workplace. As with COVID-19, we recommend tracking CDC guidance related to monkeypox and taking the necessary steps to abate any potential hazard in the workplace that may arise. However, as of the publication of this blog, neither the CDC nor OSHA have issued workplace guidance related to monkeypox other than in the healthcare industry. It is possible CDC or OSHA may issue workplace guidance related to monkeypox in the future, however, at this time employers do not need to restart COVID-19 protocols to address monkeypox.

It should also be noted that employees who contract or who are treated for monkeypox may have certain protections under Federal and state law against discrimination. For example, monkeypox can be considered a “serious” health condition under the Family and Medical Leave Act (FMLA) that would entitle an employee to a qualifying leave for treatment and reinstatement to their former job after they have been treated. Likewise, the employee may have some protections under the Americans with Disabilities Act (ADA) if the disease were to be considered or result in a “disability” entitling the employee to a leave for treatment or an “accommodation” upon returning to work if the disease were to result in a disability after treatment.

Signs and symptoms

The WHO indicates that the incubation period of monkeypox is usually from 6 to 13 days but can range from 5 to 21 days. This means that individuals could develop symptoms 5-21 days after exposure to the illness.

Centers for Disease Control on Monkeypox

The CDC is saying that an outbreak of monkeypox is currently spreading across several countries that are not typical sources of monkeypox infections, including the United States. “Over 99% of people who get this form of the disease are likely to survive. However, people with weakened immune systems, children under 8 years of age, people with a history of eczema, and people who are pregnant or breastfeeding may be more likely to get seriously ill or die.”

The infection can be divided into two periods:

  • The invasion period (lasts between 0–5 days) characterized by fever, intense headache, lymphadenopathy (swelling of the lymph nodes), back pain, myalgia (muscle aches) and intense asthenia (lack of energy). Lymphadenopathy is a distinctive feature of monkeypox compared to other diseases that may initially appear similar (chickenpox, measles, smallpox)
  • The skin eruption usually begins within 1–3 days of appearance of fever. The rash tends to be more concentrated on the face and extremities rather than on the trunk.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Minh N. Vu  and Kristina M. Launey

Seyfarth Synopsis: In this blog we examine data showing an unexpected drop in the number of Title III Americans with Disabilities Act suits filed so far in 2022, particularly in California.

The year 2021 was a blockbuster for ADA Title III lawsuits filed in federal court, with over 11,452 filings. At the end of June 2021, the lawsuit count was 6,304. This year, the number of lawsuits filed by the end of June 2022 has dropped to 4,914 — a stunning 22 percent reduction.

Mid-year numbers in prior years were as follows:

Mid-Year ADA Title III Federal Lawsuit Filings 2017-2022: 2017: 4,127; 2018: 4,965; 2019: 5,592; 2020: 4,751; 2021: 6,304; 2022: 4,914.

As you can see, we’re back at 2018 numbers. Yes, 2020 was lower, but that was the year of COVID-19 lockdowns. The 2022 count was so low, in fact, that we had to double-check our figures.

We couldn’t help but notice that the California numbers took a similar dive. Here’s a little history of the Golden State’s mid-year count:

California Mid-Year ADA Title III Federal Lawsuit Filings 2017-2022: 2017: 1,440; 2018: 2,155; 2019: 2,444; 2020: 2,702; 2021: 3,340; 2022: 1,587.

In 2022, there were 1,753 fewer federal filings in California compared to 2021, for a whopping 52 percent drop.

What’s behind this radical change? One law firm which calls itself the Center for Disability Access (aka Potter Handy) only filed 397 federal lawsuits in the first six months of 2022 as compared to 1,729 such suits for the same period in 2021. We have seen less activity from other California firms as well.

One reason for the decrease could be the increased scrutiny on these accessibility lawsuits by law enforcement officials.

For example, in April 2022, the Los Angeles and San Francisco District Attorneys filed a civil lawsuit1 against the Center for Disability Access alleging fraudulent conduct in connection with its lawsuit activities. And in May 2022, the San Francisco District Attorney lodged 18 felony charges2 against attorney Kousha Berokim who allegedly filed fraudulent accessibility lawsuits against San Francisco businesses. These actions may have had a chilling effect on the plaintiffs’ bar in California and elsewhere.

A close examination of the 2022 mid-year figures also reveals that — although California’s numbers were down by more than 52 percent — the national figures only fell by 22 percent. So which state is picking up the slack? Start spreading the news, it’s New York.

New York has had a substantial number of filings ever since we first started keeping these statistics in 2013. From 2013 to 2017, New York held third place, behind California and Florida. Then, in 2018, New York surged into second place thanks to several New York attorneys who filed hundreds of lawsuits a year about allegedly inaccessible websites and the lack of Braille gift cards. Now, for the very first time, New York has taken the number one spot for federal ADA Title III federal filings — at least for the first half of 2022. Here are the mid-year numbers of the five sttes with the highest number of filings.

2022 Mid-Year Federal ADA Title III Filings for Top 5 States: PA: 152; TX: 191; FL: 659; CA: 1,587; NY: 1,819.

Will New York be the hottest jurisdiction for ADA Title III federal lawsuits at the end of the year? Or will California manage to regain its dominance? Stay tuned …

Our Methodology: Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER. However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those cases from the count.

Notes

1 https://bit.ly/3PKcuJU 

2 https://bit.ly/3cCvDP5

By Erin Dougherty Foley and Kimberly Shen, Summer Fellow

Seyfarth Synopsis: On July 14, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment in an Americans With Disabilities Act discrimination and retaliation case filed by an employee with multiple sclerosis. In rejecting the plaintiff’s claims, the Court’s decision points to the importance of employers having legally compliant paid-time off policies

Many employers have had that experience of trying to manage that one employee who is constantly calling in “sick” and taking what feels like excessive time off. While some employees take time off for legitimate reasons, recurring unscheduled absenteeism can pose long-term problems for a company, especially if the employee is taking excessive paid time off.

When tackling this issue, employers should be wary when “that” employee is missing work for a reason that also qualifies as a legally protected absence. A recent decision from the U.S.  Court of Appeals for the Seventh Circuit points to the importance of creating a legally compliant time-off policy regarding employee absences.

Case Background

In Parker v. Brooks Life Science, Inc., Suzanne Parker, a woman with multiple sclerosis, started working for her employer as a part-time receptionist in 2017.

Throughout her employment, Parker had multiple supervisors and received mixed feedback on her work performance. In particular, Parker needed coaching regarding her misuse use of paid time off (PTO). The company’s PTO policy stipulated that employees must receive prior approval from their supervisors for planned time off and must enter the PTO hours they used in the company’s payroll software. Employees did not have to use their accumulated PTO if they arranged to switch shifts, but employees who wanted to plan schedule changes needed to receive their supervisor’s approval in advance. Meanwhile, for unplanned absences, Parker’s supervisor required her direct reports to request and enter PTO if a change to the schedule amounted to a change of thirty minutes or more.

Parker’s supervisor learned that during her absence, Parker had taken unapproved time off and made schedule changes multiple times. Her supervisor later approved Parker’s requests for time off, but reprimanded Parker for repeatedly violating the company’s PTO policy. In response, Parker acknowledged that she needed to do a better job at following the company’s policy. Her supervisor understood Parker’s statements to be admissions and contacted HR, recommending termination. After receiving approval from HR, the supervisor informed Parker that her employment with the company was being terminated.

After her termination, Parker filed a charge with the Equal Employment Opportunity Commission (“EEOC”), claiming that she had been discriminated against on the basis of her disability. Parker then sued her employer, alleging she had experienced employment discrimination and that her termination was an act of retaliation due to her request for a reasonable accommodation, in violation of the American with Disabilities Act (“ADA”), 42 U.S. C. § 12101.  [Fun fact, the ADA was enacted into law 32 years ago this week!]

The Court’s Decision

A district court granted summary judgment in Brooks Life Science, Inc.’s favor, and Parker appealed the decision. After hearing her case, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision. The Seventh Circuit held that Parker failed to produce evidence that allowed a reasonable juror to infer a link between her request for time off for pain treatment and her termination.  Even though Parker tried to argue that the fact she was fired three days after she asked for an accommodation, the Seventh Circuit found that the timing of her termination alone was not enough to establish that she had been fired due to her disability because Parker’s supervisor only learned of Parker’s unauthorized schedule changes in the intervening period between when she granted Parker’s requested accommodation and when she ultimately terminated Parker. Moreover, the Seventh Circuit noted that Brooks Life Science, Inc. had produced extensive email documentation regarding Parker’s performance issues, including emails regarding Parker’s failure to follow company PTO policy on multiple occasions, Parker’s taking unauthorized time off, Parker’s unresponsiveness to coaching, and Parker’s substandard work quality. Most notably, in one email, Parker’s supervisor had written: “Not only have I discussed this with [Parker] multiple times, but included HR. She will not follow policy and is not meeting the expectations clearly laid out for her. . .I have tried to reinforce the expectations, and I spend more time managing [Parker] tha[n] I think is beneficial to the company.” As a result, the Seventh Circuit concluded that Parker’s refusal to adhere to Brooks Life Science, Inc.’s PTO policy and failure to follow her supervisor’s instructions and coaching led to her termination.

Best Practices for Employers

The Seventh Circuit’s decision in Parker v. Brooks Life Science, Inc. reflects the importance of employers maintaining a legally compliant PTO policy. While Brooks Life Science, Inc. had experienced a favorable legal outcome in part due to the company’s documentation regarding the plaintiff’s consistent failures to follow the company’s clearly defined PTO policy, employers everywhere should still ask themselves if their PTO policies cover all their legal bases.

Employers looking to design a legally compliant PTO policy should aim to include the following:

  • Expected business hours and number of hours worked each week
  • Requirements for the clock-in/clock-out procedure
  • Expectations for paid and unpaid leave, including when and how employees qualify for leave and how much they accrue each week
  • Processes for requesting leave, including deadlines for vacation requests and blackout periods
  • Consequences if an employee fails to adhere to the policy

Whether employers are creating their first PTO policy or revising an existing policy, employers should always ensure their PTO policy lays out clearly defined expectations. Employers should also make sure that their PTO policy is shared among all employees, supervisors, and managers. After all, taking steps to ensure that everyone understands the rules of the PTO policy could ultimately work wonders in protecting companies from discrimination or retaliation lawsuits later down the road.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team, or the Leaves of Absence Management and Accommodations Team.

By Adam R. YoungA. Scott Hecker, Patrick D. Joyce, Mark A. Lies, II, James L. CurtisBrent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: The WHO and the CDC issued statements and FAQs on the monkeypox disease, declaring the disease a “Public Health Emergency of International Concern.”

On July 23, 2022, the WHO declared monkeypox a “Public Health Emergency of International Concern” and issued a set of Temporary Recommendations to address a multi-country outbreak of monkeypox. These recommendations apply differently to countries with no known transmission versus those with known human-to-human transmission. For countries with known human-to-human transmission, the WHO recommends implementing response actions with the goal of stopping human-to-human transmission, implementing strategies to protect vulnerable groups, and engaging with affected communities to raise awareness about monkeypox transmission. The WHO also recommends various public health measures such as increasing laboratory testing capacity and assisting local public health authorities with creating messaging for those who contract or are exposed to monkeypox.

No Specific Employer Action Plan Required at This Time

Unlike COVID, which is transmitted in the air, monkeypox’s primary route of transmission is through skin to skin contact with someone who has the disease. Accordingly, with the exception of the healthcare industry, monkeypox is currently viewed as a public health hazard and not a workplace health hazard. As such, there are no specific federal, state, or local rules that address monkeypox precautions in the workplace. As with COVID-19, we recommend tracking CDC guidance related to monkeypox and taking the necessary steps to abate any potential hazard in the workplace that may arise. However, as of the publication of this blog, neither the CDC nor OSHA have issued workplace guidance related to monkeypox other than in the healthcare industry. It is possible CDC or OSHA may issue workplace guidance related to monkeypox in the future, however, at this time employers do not need to restart COVID-19 protocols to address monkeypox.

It should also be noted that employees who contract or who are treated for monkeypox may have certain protections under Federal and state law against discrimination. For example, monkeypox can be considered a “serious” health condition under the Family and Medical Leave Act (FMLA) that would entitle an employee to a qualifying leave for treatment and reinstatement to their former job after they have been treated. Likewise, the employee may have some protections under the Americans with Disabilities Act (ADA) if the disease were to be considered or result in a “disability” entitling the employee to a leave for treatment or an “accommodation” upon returning to work if the disease were to result in a disability after treatment.

Signs and symptoms

The WHO indicates that the incubation period of monkeypox is usually from 6 to 13 days but can range from 5 to 21 days. This means that individuals could develop symptoms 5-21 days after exposure to the illness.

Centers for Disease Control on Monkeypox

The CDC is saying that an outbreak of monkeypox is currently spreading across several countries that are not typical sources of monkeypox infections, including the United States. “Over 99% of people who get this form of the disease are likely to survive. However, people with weakened immune systems, children under 8 years of age, people with a history of eczema, and people who are pregnant or breastfeeding may be more likely to get seriously ill or die.”

The infection can be divided into two periods:

  • The invasion period (lasts between 0–5 days) characterized by fever, intense headache, lymphadenopathy (swelling of the lymph nodes), back pain, myalgia (muscle aches) and intense asthenia (lack of energy). Lymphadenopathy is a distinctive feature of monkeypox compared to other diseases that may initially appear similar (chickenpox, measles, smallpox)
  • The skin eruption usually begins within 1–3 days of appearance of fever. The rash tends to be more concentrated on the face and extremities rather than on the trunk.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Linda C. Schoonmaker and Tayte Doddy, Summer Fellow

Seyfarth Synopsis:  In 2013, Yvonne Cardwell, a dishwasher at a Whataburger in El Paso, Texas, was injured when a heavy object fell off of a top shelf and hit her in the head. Whataburger moved to compel the lawsuit she filed against her employer to arbitration, pursuant to its mandatory arbitration policy.

Whataburger’s mandatory arbitration policy (“Policy”) required all employees, as a form of accepting employment, to agree to submit all legally recognized claims and disputes related to their employment to arbitration. The Policy also bound Whataburger to the same terms, but included a provision stating  “any employee who continues to work for the company for more than 30 days after any amendment in the company Arbitration policy shall be deemed to have consented to the changes in the Policy.” The exception to this provision, however, was that once facts gave rise to a legally recognized claim or dispute, Whataburger had no right to unilaterally modify the Policy relating to the claim or dispute without the mutual consent of both parties. The Policy also required Whataburger to give its employees at least 30 days advanced notice of the any amendment.

The Policy was contained in the Whataburger Employee Handbook (“Handbook”). The Handbook was labeled as a “guide”, and Whataburger reserved the right to modify or delete any part of the Handbook without notice. Cardwell signed an acknowledgement form indicating that she had received the Handbook and Policy, and initialed a paragraph that expressly stated all claims or disputes will be submitted to arbitration.

In August 2013 the trial court found the Policy to be unconscionable and denied Whataburger’s motion to compel arbitration. On appeal in October 2014, the court of appeals rejected the trial court’s unconscionability analysis, reversed its order, and remanded with instructions to grant Whataburger’s motion to compel arbitration. But, the court of appeals failed to adjudicate cross points Cardwell had briefed in support of the trial court’s order. The Texas Supreme Court granted Cardwell’s petition for review, and remanded to the court of appeals to address Cardwell’s arguments.

On remand, the court of appeals rejected all of Cardwell’s remaining arguments except one: that the Policy was illusory because Whataburger could revoke it at any time. Conflating the non-binding employee Handbook and binding arbitration Policy as one entity, Cardwell argued that since the handbook could be modified at any time and the arbitration policy was included within the handbook, the entire policy was illusory because Whataburger retained the right to unilaterally modify the Policy. The court of appeals declined to resolve the issue and remanded the case back to the trial court.

Nearly five years after the initial filing, the trial court denied the motion to compel arbitration again. However, the trial court clerk failed to give Whataburger or Cardwell notice of the order denying the motion to compel arbitration. There is generally a 20-day timeline to appeal this kind of order, and if a party does not receive notice within 20 days after the order, the timeline for appeal is extended to a maximum of 90 days. Whataburger was not informed of the trial order until 153 days had passed, nearly five months after the order was issued. Whataburger immediately requested reconsideration from the trial court due to being stripped of its right to appeal. The trial court denied the motion, and Whataburger requested mandamus relief from the court of appeals. The court of appeals also denied the relief, and Whataburger then requested mandamus relief from the Supreme Court of Texas.

Nine years after the initial filing of the lawsuit, the Texas Supreme Court held that Whataburger was not given an adequate chance to appeal, that its promise to arbitrate was not illusory or unenforceable, and that the acknowledgement referring to the Policy did not condition the parties’ promises to arbitrate on an employee’s continued, at-will employment. The Court cited the trial court clerk’s failure to notify the parties of its order and the trial court’s erroneous interpretation of the Policy and Acknowledgement as reasons for its deciding the trial court abused its discretion in failing to compel arbitration.

TAKEAWAYS

Employers should be cautious about how an arbitration policy is communicated to employees, including where it is placed. When binding documents like an arbitration policy and non-binding documents like an employee handbook are combined in a single publication, there is room for employees to argue against the binding nature of the arbitration policy.

To avoid this argument it is prudent to separate all binding and non-binding documents so that there is very little potential for confusion . Employers should also include language in the arbitration agreement that expressly limits the employer’s ability to unilaterally change the policy after an event giving rise to a claim has occurred to reduce the chance of a court finding that the agreement is unconscionable or illusory. However, an employer still may have to wait a long time before the final decision regarding compelling arbitration is made-but hopefully less than 9 years.

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

By Vy’Shaey Mitchell and Erin Dougherty Foley

Seyfarth Synopsis: In a recent ruling, Brooks v. Avancez, (Decided July 6, 2022) the U.S. Court of Appeals for the Seventh Circuit affirmed a finding for summary judgment for an employer after it was found to have terminated its employee for legitimate non-discriminatory reasons. The decision makes clear that an employer may avoid “cat’s paw liability” where the decision maker is not wholly dependent upon a single source of information and conducts her own investigation into the facts relevant to the decision.

In its July 6, 2022 Decision, the Seventh Circuit Court of Appeals affirmed that Avancez lawfully terminated the plaintiff, Ms. Brooks for making various threats of violence toward her co-workers, rather than (as she alleged) because of her age and disability – PTSD. Avancez is an auto parts manufacturer located in Roanoke, Indiana. Ms. Brooks alleged that during her employment with Avancez, she repeatedly complained of unfair treatment and derogatory comments based on her age and disability by her co-workers. The Court found that Ms. Brooks failed to provide sufficient examples of any age based comments, rather she described, generally, that two of her co-workers made statements that she was old and slow. The Court further found that there was no evidence that Ms. Brooks complained of disability discrimination, rather she only stated that certain workplace situations exacerbated her preexisting PTSD.

However, there was sufficient evidence, including Ms. Brooks’ concession, that management – on two separate occasions – believed that Ms. Brooks made threats toward her co-workers. On one occasion, Ms. Brooks, during a meeting with the human resources manager, allegedly stated “I have PTSD and anything can happen.” On another occasion, Ms. Brooks, during a disagreement with a co-worker stated, “we can take it outside.” On both occasions, management advised Ms. Brooks that they believed her comments constituted threats.

Ms. Brooks nevertheless maintained that her co-workers’ discriminatory remarks regarding her age raised an inference of discrimination. The Court disagreed. The Court found that even under Brooks’ “cat’s paw” theory of liability, there was no evidence that the non-supervisor actually harbored discriminatory animus against her and Avancez’s management, after conducting its own investigation, which included Ms. Brooks’ history of making threats to co-workers and her refusal to sign off on the discipline report,  made the decision to terminate Ms. Brooks’ employment.

The Court, therefore, disregarded Ms. Brooks’ “scattershot” attempts to provide evidence of pretext, and found that Avancez met its burden of production by providing a legitimate non-discriminatory reason for terminating her employment.

Practical Point – conduct your own investigations before termination

A manager responsible for making a decision as to whether to terminate an employee’s employment should be diligent and ensure that they are not performing the discriminatory acts of another individual. Pursuant to the Cat’s Paw theory of liability, employers may be found liable for discrimination where there is evidence that the unbiased decision maker is influenced to take an adverse action by another employee with discriminatory intent.  However, an inference of pre-text can be thwarted where the decision maker conducts his/her own investigation into the company’s basis for terminating an employee.

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