By Linda Schoonmaker and John P. Phillips

Seyfarth Synopsis: In a recent decision, the Eleventh Circuit Court of Appeals held that the use of the N-Word in the workplace one time is sufficient to trigger a hostile work environment. Additionally, the Eleventh Circuit held that an employer may be held liable for workplace harassment when the plaintiff admitted that she did not complain of harassment until her final day of employment (and when the employer alleged that the plaintiff never complained of harassment). In light of this decision, and in light of the increased focus on workplace harassment over the past year, employers should use this case as an opportunity to review their No Harassment Policies and update their employment law training—to proactively ensure that harassing conduct does not occur in their workplaces.

When faced with allegations of a hostile work environment, employers often rely on two defenses: First, in order to be actionable, a hostile work environment must be both “subjectively” and “objectively” hostile. In other words, the plaintiff must subjectively perceive the harassment to be abusive, and the work environment must be one “that a reasonable person would find hostile or abusive.” Over the years, courts have typically required multiple instances of inappropriate or harassing behavior, in order to meet this standard. Second, if the harassing behavior was committed by co-workers, the plaintiff must have complained of the harassment. In other words, the employer must have knowledge of the harassing conduct (either actual or implied—companies cannot hide their heads in the sand) before it can be held liable.

In a recent decision, however, the Eleventh Circuit Court of Appeals held that use of the N-Word on one occasion could create a hostile work environment, and the Court held that the employer could be held liable even though the plaintiff admitted that she never complained about alleged harassment until (allegedly) right before her termination. (In fact, the company denied that she ever complained at all.)

Given the increased media focus on workplace harassment, this case provides a good opportunity for employers to review their anti-harassment policies and procedures, in order to proactively ensure that harassment-related issues do not proliferate in the workplace.

Background on the Case

In Smelter v. Southern Home Care Services, Inc., the plaintiff had been hired by Southern Home Care Services in July 2013 as a customer service supervisor. As part of her job, the plaintiff was responsible for coordinating with caregivers and clients, scheduling in-home visits, and accurately recording all caregivers’ work time. There was no dispute that the plaintiff required extra training and committed many mistakes during her employment. In September 2013, she was terminated for poor performance, after a final incident in which she got in a heated argument with and yelled at a co-worker. Following her termination, the plaintiff asserted the following allegations:

  • She had endured racist remarks from her co-workers nearly every day during her employment.
  • During the argument with her co-worker on the last day of her employment, her co-worker had called her a “dumb black [N-Word].”
  • Her co-workers had made derogatory comments about black men, black women, President Obama, and compared the plaintiff with a monkey from the movie Planet of the Apes.
  • Her supervisor thought the racist comments were funny.

Although the plaintiff admitted that she had never complained about any of the comments prior to the final incident, the plaintiff alleged that she had told her supervisor about the harassment before she was terminated. Her supervisor claimed that she never complained about any race-related comments, and the plaintiff’s exit interview paperwork—which both the plaintiff and her supervisor signed—had no mention of any harassment-related complaints.

Ultimately, the district court granted summary judgment for the company, finding that the harassment the plaintiff allegedly experienced was not sufficiently severe or pervasive enough to constitute a hostile work environment, as a matter of law, and that the company had no knowledge of the alleged harassment. The plaintiff appealed to the Eleventh Circuit.

The Eleventh Circuit’s Opinion

On appeal, the Eleventh Circuit reversed the district court’s dismissal of the plaintiff’s hostile work environment claim. In doing so, the Eleventh Circuit made two significant holdings:

First, the Court held that even standing alone, the single use of the N-Word was sufficient to constitute severe harassment. The Court explained:

Southern Home argues that [the co-worker]’s “one-time use” of [the N-Word] was insufficient to establish severity as a matter of law. We strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner.

The Court also held that the other comments alleged by the plaintiffs were similarly sufficiently severe to create a hostile work environment, and consequently, the plaintiff had alleged a legally actionable hostile work environment claim.

Second, the Court disagreed with the district court that the employer did not have knowledge of the alleged harassment. Although it was undisputed that the plaintiff failed to report any harassment until the final day of her employment (and the company disputed whether she had even reported it then), the plaintiff had alleged that the racist slurs were “funny to everybody that worked in the . . . office,” including her supervisor. The Court found that this was sufficient evidence to hold that the supervisor had knowledge of the comments, since she could not have found the comments funny if she did not hear them.

Thus, the Court found that the plaintiff had alleged an actionable hostile work environment claim, and it remanded the case to the district court for trial.

Takeaways

In light of this decision and the increased awareness of improper workplace conduct stemming from the #MeToo movement, there are a number of proactive steps that employers can take to help ensure that their companies have the proper culture to avoid harassment complaints and allegations:

  • Review and revise, if necessary, the No Harassment Policy. Most companies have No Harassment Policies (and if your company doesn’t, it should). However, often those policies have not been updated in a number of years. Now is a good time to pull out the policy, review it, and make any necessary updates, including ensuring that there are clear, and multiple, avenues for employees to report harassment.
  • Train your managers and supervisors. Your supervisors are your most effective buffer against employment law-related allegations and lawsuits, and they serve as a conduit between the company and its employees. Managers and supervisors should get regular anti-harassment and other employment-law based training, in order to ensure that they will know when harassment is occurring and will know what to do if they spot inappropriate conduct.
  • Focus on proper documentation. In conjunction with training your supervisors and managers, documentation issues should be covered. To defend any lawsuit, you must have good documentation. Your supervisors should be trained on correctly documenting all employment actions.
  • Promptly investigate and correct any complaints of harassment. Once the company is aware of any improper harassment-related conduct, whether from a direct complaint or an observation in the workplace, the company must take prompt and appropriate action. In doing so, it is important to take all allegations and complaints of harassment in the workplace seriously, immediately perform a thorough and complete investigation of any harassment complaints, and implement swift, appropriate, and proportional remedial action, if necessary, including possible termination or suspension.

Over the past year, workplace harassment issues have increasingly grabbed headlines. While all employers can agree that use of the N-Word is especially egregious, employers must take steps to ensure that such conduct does not occur. More importantly, employers must ensure that they have the policies and procedures in place to prove that such conduct did not occur. This means having an up-to-date No Harassment Policy, and supervisors and managers who are well-trained on anti-harassment and proper investigation methods. By proactively addressing any workplace harassment issues head-on, employers can put themselves in the best possible position to defend any subsequent lawsuit.

By John P. Phillips and Linda Schoonmaker

Seyfarth Synopsis: In recent months, sexual harassment has seized national headlines and raised significant questions about company policies, procedures, and culture. In response, many companies and HR personnel have questioned how to appropriately respond to complaints of sexual harassment. A recent decision out of the Western District of Wisconsin provides a helpful summary of the state of Title VII, the federal anti-discrimination and harassment law, and the appropriate company response to harassment. Given the national debate and this recent decision, now is a good time for employers to implement some best practices to (1) prevent harassment before it occurs and (2) take appropriate remedial action if it does.

Sexual harassment has been around for a long time, but recently it has garnered national headlines. Movements such as #MeToo and Time’s Up have appropriately focused the spotlight on company policies and procedures. It is important for companies to continue to improve workplace culture and their responses to harassment when it does occur. At the same time, it is important for companies to understand the legal framework for a harassment claim, and their legal responsibilities.

A recent decision out of the Western District of Wisconsin provides an important reminder on the state of the federal law prohibiting sexual harassment in the workplace, and an employer’s responsibility to prevent and correct any harassing behavior.

Background on the Case

In Lee v. Dairyland Power Cooperative, the plaintiff alleged that several of her co-workers sexually harassed her, and that the company failed to take adequate steps to prevent the harassment. After an analysis of the applicable framework for sexual harassment under Title VII, the Court dismissed the plaintiff’s case, finding that she could not prevail on her harassment claim as a matter of law.

The facts of the case were largely undisputed and simple: on one occasion, the plaintiff overheard her immediate supervisor, a co-worker, and a security contractor—all male—discussing their desire for her to wear her “spring outfits.” They also compared her physically to another employee, who they described in a sexually suggestive manner; and they discussed the sex life of yet another employee. These facts were undisputed, and the plaintiff complained to Human Resources the same day. HR immediately investigated the incident and concluded that the sexually demeaning conversation had occurred.

The plaintiff’s supervisor personally apologized to the plaintiff and promised that the action would never happen again; that he would not engage in any further sexual harassment; and that he would protect the plaintiff from retaliation. The company asked the plaintiff to return to work, but she refused, believing the company’s response was inadequate. The company followed-up, explaining that there were no positions to which she could be transferred to be away from the supervisor. Feeling that the company had not fixed the situation, the plaintiff quit her employment. That same day, the company suspended the supervisor for two weeks without pay, and ordered him to attend retraining on the company’s sexual harassment policy.

Application of Title VII

The Court laid out the legal standard for maintaining a sexual harassment claim under Title VII (the federal law prohibiting harassment in the workplace): the plaintiff must prove that (1) she experienced unwelcome harassment, (2) the harassment was based on sex, (3) the harassment was so severe or pervasive that it altered the conditions of her employment and created a hostile or abusive environment, and (4) a basis exists for holding the employer liable. Here, it was undisputed that the plaintiff had experienced unwelcome harassment based on her sex. However, the Court found that she could not meet the third and fourth prongs of the test.

First, the Court found that overhearing the statements on only one occasion did not create an abusive working environment. Indeed, the Court applied Seventh Circuit precedent for the proposition that “verbal harassment limited to a one-time incident that was overheard, rather than intentionally inflicted, does not rise to the severe or pervasive standard under Title VII.”

Second, the Court found that the employer could not be held liable for the wholly inappropriate conduct of the supervisor. The company maintained an anti-harassment policy, which the supervisor violated. And as soon as the company learned that harassment had occurred, it initiated an investigation pursuant to its no harassment policy; and the company instituted discipline reasonably calculated to end the harassment. The Court found that the two-week suspension, apology, promise to protect the plaintiff from any harassment, and retraining on sexual harassment issues were sufficient for the company to meets its legal burden to resolve the problematic work environment. Accordingly, the company could not be held liable under Title VII.

Takeaways and Best Practices

When sexual harassment occurs in the workplace, nobody wins. And as the Dairyland Power case makes clear, even companies that have and enforce no harassment policies can face costly litigation. Given the current national debate over harassment, now is a good time for employers to review and reevaluate their sexual harassment policies and procedures.

Employers should consider several proactive steps—to help prevent sexual harassment on the front-end and then to appropriately handle the situation if it were to arise—including: (1) ensuring the company’s no harassment policy and reporting structure is up-to-date and clear; (2) providing harassment and employment law training to supervisors and managers; (3) taking all allegations and complaints of harassment in the workplace seriously; (4) immediately performing a thorough and complete investigation of any harassment complaints; and (5) implementing swift, appropriate, and proportional remedial action, including termination or suspension if necessary.

Above all, employers should strive to ensure that their company’s culture is one where sexual, or any other form of harassment, is simply not tolerated. Instead, each employee should enjoy a safe and respectful work environment, and feel empowered to raise any workplace harassment issue with his or her supervisor, manager, or HR. At the same time, the company should feel secure that taking proactive action on the front-end to eliminate any harassment before it occurs, and taking immediate action to stop and remedy any harassment after it occurs, is sufficient to satisfy its legal obligations under Title VII. Fortunately, the Dairyland Power decision continues to apply this legal standard.

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 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 Jason E. Burritt, Michelle Gergerian, and Dawn M. Lurie

Seyfarth Synopsis: If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.

Background

A federal government shutdown could begin at midnight on Friday, April 28 if Congress fails to pass a funding bill. This means that, effective Monday, May 1, only “essential” government workers would report to work until Congress passes a spending bill.

U.S. Citizenship and Immigration Services (USCIS)

USCIS would be minimally impacted because it is largely a user-fee funded service. The vast majority of USCIS workers would continue to report to work during a shutdown. This means USCIS would continue to process applications and petitions for immigration benefits, with some processing delays possible. As explained below, however, petitions for which a Department of Labor (DOL) certification is required — such as the H-1B that requires a Labor Condition Application (LCA) -­may be adversely affected. USCIS has not yet announced whether it would temporarily accept extensions without DOL-certified LCAs, although historically USCIS has not.

E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, would be inaccessible during the shutdown. However employers are reminded that they must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system. During a prior shutdown, USCIS issued guidance suspending the “three day rule” for any case affected by the shutdown.  Historically employees caught in the Tentative Non-Confirmations (TNCs) process were provided an extended time period to resolve the issue.

Again, employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.

Other components of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) are expected to retain most of their essential staff. CBP has not yet indicated whether it would process immigration applications at the border, such as initial TN and Blanket L applications for Canadian nationals, but it is expected that these adjudications would continue.

Department of Labor

Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would be placed in furlough status during the government shutdown. OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, PERM audit responses or applications for permanent employment certification (.e.g PERM applications). OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts. Employers with concerns about these deadline-specific functions should consult an immigration attorney with questions about proper maintenance of status during these uncertain times.

Department of State (DOS)

Visa issuance should continue, at least temporarily. Domestic and overseas Consular operations should remain fully operational as long as sufficient fees exist to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. The continuance of consular operations in such instances would be treated on a case-by-case basis by the Under Secretary for Management.

Department of Justice (DOJ)

DOJ trial attorneys and immigration judges should conduct removal (deportation proceedings) only for individuals in federal custody at least for a short period of time. All other cases would likely be suspended during the shutdown. Similarly, furloughed would be attorneys and staff within the Immigrant and Employee Rights section of DOJ charged with accepting and investigating charges of workplace discrimination arising under the immigration laws.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Business Immigration Group.

To stay up-to-date on immigration developments, sign up for Seyfarth’s new BIG Immigration Law Blog.

By Karla Grossenbacher

Men typing in Whatsapp on IphoneSeyfarth Synopsis: Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.

Texting is becoming more common in the workplace. Most employees use company-owned or personal phones to communicate in the workplace to some degree, and with phones, comes texting.  Even if email is the sanctioned form of communication in the workplace, employees will text.  Some employers may not even be aware their employees are texting with each other or to what extent.  Other employers may be aware and actually permit texting in the workplace or simply tolerate it because they feel they cannot prevent it from happening.

Yet, if employers allow employees to text in the workplace, they will need to think about how they will access, view and preserve employee texts in the same manner that they do with emails. Plaintiff-side lawyers in employment cases are beginning to demand that text messages be produced along with emails during discovery.  If the texts are made from company phones, the basis for such a request would seem to be well-founded assuming the substance of the texts is relevant to the claims and defenses in the case.  However, when the texts are sent or received on personal devices used by employees in the workplace, the issue becomes more complicated.  In such cases, employers typically argue that they are not required to produce texts from their employees’ personal devices because such devices are not within the employer’s custody or control.  But if employees are using personal devices at work pursuant to a Bring Your Own Device program, the argument that such devices are not under the employers’ custody or control is undercut.  Often BYOD policies allow for the employers to take custody of the employee’s personal device for various legitimate business purposes, which would include responding to discovery requests in litigation.

Thus, employers must grapple with how they will fulfill their legal obligations with respect to workplace texts by ensuring they have the same ability to access, view and preserve employees texts that they do with employee emails. And this need will only grow more pressing as time goes on.  Some commentators say that, given the strong preferences of Generation Y for texting, texting will replace email as the primary mode of communication in the workplace of the future.  Thus, prudent employers will start thinking about this issue is now.

The difficulty with texting in the workplace is that — from the employer’s perspective — texting is offline. In workplaces in which email is the primary method of communication, employee emails are usually sent, received and stored on an email server that is maintained by the employer.  With the right policies in place, employers have free reign to access, review and preserve employee emails stored on these servers.  There are many legitimate reasons for which employers need to access and view employee communications.  For example, the employer may be conducting a workplace investigation or responding to a subpoena or discovery requests in litigation.  Employers may also have an affirmative obligation to preserve employee communications when they are in litigation or in connection with a governmental inquiry or as required by law.

However, employers do not have ready access to employee texts and are not in a position to preserve them. Unlike emails, texts typically reside on the phones on which they are sent and received.  These phones may or may not belong to the employer, but in order to access and review workplace texts, the employer must first take possession of the phone on which the text resides.  Not only is this a cumbersome process if several employees’ texts must be retrieved, but it may not be possible if the owner/custodian of the phone is not in the office or works remotely.  Moreover, having to take physical custody of an employee’s phone rules out any kind of surreptitious review of texts, which could be important in an investigation of suspected wrongdoing.

Also, where texts reside only on the phones on which they are sent and received, it is much more difficult for the employer to ensure such texts are being preserved in those situations in which an employer has an affirmative duty to preserve such communications. Setting aside the fact that phones can be lost or damaged or suffer a malfunction that makes it impossible to retrieve the texts stored on them, in order for an employer to ensure texts are being preserved, the texts need to be backed up in some way.  If employees are texting on company-owned phones, it is conceivable that the employer could implement a system for automatically backing up the texts.  However, with the proliferation of Bring Your Own Device programs, employees are often using their own phones at work.  Where employees are using their own personal devices in the workplace, the employer would have to require employees to back up their texts to a company-owned computer or server.  Even with a protocol in place for backing up texts, an employer could never be sure all texts were being captured as it is possible for employees to delete texts from a phone before the backup occurs.

There will also certainly be privacy issues raised for employers when they access and view employee texts. Personal and work-related texts will inevitably be commingled, especially if the phone is a personal device.  The good news for employers on this front is that texts appear to garner less privacy protection under applicable law than emails in the workplace.  For example, under the federal Stored Communications Act, which prohibits unauthorized accessing of communications in electronic storage through a facility that provides an electronic communication service, courts have held that a cell phone is not “facility” and that texts are not in “electronic storage” for purposes of the statute, and therefore, the SCA’s prohibitions do not apply to accessing texts on a cell phone.

Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.  No one knows exactly what the workplace of the future will look like and how employees will communicate in it, but employers should look into that future now and start taking steps to prepare for it.

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

By Dawn M. Lurie and Leon Rodriguez

Top view of smart phone, coffee, pen and notepadSeyfarth Synopsis: As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement.   This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur.  Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.

In light of the Trump Administration’s promises of increased immigration enforcement, employers and employees are growing more concerned about the prospect of government worksite visits either to effectuate arrests or to conduct investigations and audits.  To be clear, the Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement  (“ICE”) agency has clarified that there has been no directive to initiate worksite enforcement (aka raids) against employers. Notwithstanding, it does appear that recent ICE arrests have swept not only individuals either alleged to have committed a crime or for whom an immigration warrant is outstanding, but also others accompanying the intended arrestee who are found to lack legal status in the U.S.

In addition to arrests, other investigative and audit activity looms on the horizon. Chatter continues about a possible increase in Form I-9 audits by ICE’s Homeland Security Investigations Unit (HSI), and similar activity by the U.S. Citizenship and Immigration Services Fraud Detection National Security Unit as well as it’s E-Verify Monitoring and Compliance branch. Additionally, the Department of Justice’s newly named Employee and Immigrant Rights Office (legacy Office of Special Counsel), will continue to pursue investigations into citizenship, national origin discrimination and document abuse matters. This Alert focuses on a visit by the folks at HSI, a separate Alert will be focused on USCIS site visits and investigative visits by other agencies.

Be Prepared

Employers must develop and implement strong compliance policies, renew their current policies, assess immigration exposure, consider outside counsel audits of Form I-9, E-Verify and H-1B public access files, if applicable and most relevant to today’s climate, plan in advance how to respond when immigration agents visit the company. All personnel, from the those in the reception area to HR managers must be prepared and know what to say and what not to say when DHS agents visit. Training alone will not prepare the business, but rather a targeted step-by-step process, known to all relevant managers and employees, that can be easily followed in the event of a visit will likely yield enhanced results

It is important to understand the possible purposes of a DHS visit and how to respond when a DHS Special Agent knocks on your door. The following is a general guide for addressing a visit from an immigration Special Agent. We recommend developing specific process documents to describe the various types of encounters with government agents that a worksite may face. It is also important to consider delineating roles and responsibilities, as well as a global response to investigations and audits.

Keep in mind there will be three main reasons by ICE may visit a worksite:

  1. To look for, or take into custody, a particular individual;
  2. To issue a Notice of Inspection of a company’s Form I-9 document; ICE continues to focus its worksite inspection efforts on employers conducting business in critical infrastructure and national security interest industries/sectors.  For example commercial facilities, communications, critical manufacturing, dams, emergency services, government facilities, information technology, nuclear reactors materials and waste and transportation systems remain favorites. Other focus is on employers for whom ICE has received a credible tip or lead. A full overview of the Form I-9 Inspection is discussed in a separate Alert; or
  3. To conduct a Worksite Enforcement Action: During these worksite “raids”, large numbers of Special Agents may descend upon a location, without notice. ICE will obtain indictments, arrest or search warrants, or a commitment from a U.S. Attorney’s Office to prosecute a targeted employer before arresting employees for civil immigration violations at a worksite. The last such “Action” occurred in Bellingham, Washington in February of 2009 however, it is unknown whether such activity will resume.

Designate and Prepare Representative Responders

When the government knocks it will serve a company well to have prepared those on site to greet the government visitor. Providing that “greeter” with a specific list of exactly who needs to be contacted, both immediately at the affected location and/or elsewhere in the company, will minimize confusion. This guidance will be welcomed by your employees. Defining roles, and even providing scripts to greeters and representative responders, may further minimize unnecessary disruption and distress. Responder roles include, but are not limited to, the following individuals:

  • Receptionist /Front Desk Greeter
  • Manager(s)
  • Human Resources Representative
  • General Counsel, if applicable
  • Outside Immigration Counsel

Provide Instructions to the Field

Employees likely to be approached by government Special Agents, including reception staff and relevant security personnel, should be briefed on the company’s protocol for handling a visit targeting an individual, the service of a Notice of Inspection, or another enforcement action. It is critical that companies first discuss the specifics of such a protocol with their immigration counsel in order to address individual considerations and customize a particular response.  Advice will be based on a variety of factors including a risk assessment and even a review of your physical plant.

Regardless of the type of investigation, all responders must be as cooperative as possible with the government Special Agents. You generally want to provide the government with only that which is necessary to meet their request as outlined in detail below. The initial contact should ascertain the name of the agency visiting and whether or not they have documents to present, as well as the purpose of their visit. You also want to ensure the visit itself does not exceed the scope of the warrant, subpoena, or other written request.

The Receptionist/Greeter should be instructed that upon the arrival of government Special Agents, s/he should immediately contact the designated Manager and any other Responders. The receptionist’s role could end there or could continue to the next steps depending upon the direction of the company.

  1. The Greeter should not allow the Special Agents out of the waiting area, but rather make them comfortable while waiting for the Manager or appropriate lead person.
  2. Limited questions and answers noting she/he is not authorized to give consent to enter the premises or respond to questions. Special Agents are trained professionals and being overly talkative is not recommended. In some cases the Special Agents may seem threatening, aggressive, or difficult, however there is no need to panic. In other cases, the pair of agents could begin a game of “good cop/bad cop” right there in the lobby. The Greeter should keep calm and continue to try to reach the manager.
  3. If the Special Agent is still aggressive, inform him/her that the company has protocols in place to make sure government inquiries are addressed and request that you be allowed to follow them. On the other hand if the agent is very chatty, keep in mind he/she is really not a friend and there is no need to sit down and engage in conversation. Keep the answers short and direct until a Manager arrives.
  4. A direct call to legal counsel should be considered as part of this process for the Greeter.
  5. AGAIN, the Greeter should not provide any consent to allow the Special Agents access to anywhere outside of the public entry way space.

The Manager (or his designee) should ensure legal counsel, headquarters and outside immigration counsel, as designated in your company’s individual protocol has been contacted prior to walking out to meet the Special Agents. Mobile phone numbers and specific contact information should be readily accessible. The manager should then greet and escort the Special Agents to a predetermined room/location, which should be as private as possible. The location should be close to an exit of the building where their departure, possibly with an employee, will not cause disruption. Specifically the Manager should then take the following steps:

  1. Confirm and/or identify the government agency that dispatched the agent/visitor. Ask the Special Agents for identification and note each person’s name, title, agency, and obtain contact information as well a business card.
  2. Ask the Special Agents about the purpose of the visit and request subpoena and/or warrant, under which they are acting.  The agents MUST present a warrant in order to gain access to the items or individuals they are seeking.
  3. Inquire on the nature of the inquiry and ascertain to the extent possible if an individual employee is being or if the agents are investigating the company.
  4. Communicate to the government agents that the company will cooperate with the request but that they have/will contact legal counsel to assist them in complying.
  5. Determine if the agent is presenting official documents by reading them or scanning to in-house counsel or outside Counsel. If time is short the Manager can take a photo on their phone and text message. If the investigator presents any official documents, they must be read carefully to determine if the document is a Judicial Subpoena (which must be honored) or an Administrative Subpoena (which may be challenged). Generally, Form I-9 audit requests are administrative and elements of the request may be subject to challenge.
  6. An arrest warrant will not authorize its holders to simply wander otherwise private premises. The warrant must describe with specificity the location to be entered and those specifics will limit where an agent can go.   Even if the warrant authorizes the arrest of an individual, it must explicitly authorize entry into specific private premises including individual offices, the production floor etc. for such entry to occur.
  7. Employees should be reminded not to waive any rights, and provide consent to any activity beyond that described in the warrant.
  8. Remember ICE agents must have a valid search warrant or the company’s consent to enter non-public areas of the workplace even if the company itself is under investigation.
  9. Make contact with the lawyers. Before answering any of the agent’s questions, the Manager should first speak with inside counsel or experienced immigration counsel. Counsel may want to come to the location, if possible, or speak by telephone with the investigator.
  10. Remember you have three days to turn over your Form I-9s and related documents, even when presented with a subpoena and related Notice of Inspection. Do not EVER waive this time period. Immigration counsel will assist directly and organize the submission to ICE or the requesting agency (sharing of Form I-9 data is limited for privacy purposes, but allowed to be provided to agencies outside of DHS and DOL where there is a criminal investigation involved). Documents will be turned over in an orderly fashion with ICE acknowledging receipt and providing a “Chain of Custody.”

In summary:

  • Do not turn over any documents unless a search warrant mandates such action. Again, this will not be the case in the context of an Form I-9 audit.
  • Do not provide any information other than what is exactly asked.
  • Make copies, if possible of anything being taken.
  • Ensure legal counsel is available in real time to consult on any immediate requests.

Companies in specific industries may face additional challenges when responding to government visits. Outside immigration counsel should be consulted to establish customized protocols and practical procedures for your employees, supervisors and managers, and possibly your customers, to follow when faced with visits from ICE, USCIS DOJ or the DOL.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Business Immigration Group.

 

By Meredith-Anne Berger and Tracy M. Billows

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

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

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

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

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

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

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

By Karla Grossenbacher

shutterstock_328329848-300x200Seyfarth Synopsis: This blog considers the blurring of the lines between personal and work-related communications which has created novel legal issues when it comes to determining whether an employer has the right to access and review all “work-related communications” made by its employees.

Over the last decade, communication via email and text has become a vital part of how many of us communicate in the workplace. In fact, most employees could not fathom the idea of performing their jobs without the use of email. For convenience, employees often use one device for both personal and work-related communications, whether that device is employee-owned or employer-provided. Some employees even combine their personal and work email accounts into one inbox (which sometimes results in work emails being accidentally sent from a personal account). This blurring of the lines between personal and work-related communications creates novel legal issues when it comes to determining whether an employer has the right to access and review all work-related communications made by its employees.

Employers have legitimate business reasons for monitoring employee communications. Take, for example, the scenario in which an employee leaves her employment, and the employer is concerned that she has taken proprietary information or solicited clients in violation of her duty of loyalty or a contractual agreement. Another common scenario that gives rise to the need for employers to review all of an employee’s work-related emails is when the employer is in litigation that requires production of employee communications.

Most employers are comfortable with the notion that, with a properly worded policy that provides notice to employees of the ability and intent to monitor email, an employer can access emails on an email server provided by the employer. However, what about cases in which the employer does not provide the email service? With employees using web-based emails, like Gmail and Hotmail, and texts to communicate in the workplace, the relevant communications may be elsewhere. In these situations, what are an employer’s rights to access and review such communications?

An employer’s ability to review electronic communications is governed by the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA). The ECPA prohibits the interception of electronic communications, and the term “interception” as used in the ECPA has been interpreted so narrowly that this title of the ECPA rarely comes into play in cases involving an employer’s review of employee email or texts. The SCA makes it illegal to access without authorization a facility through which electronic communication service is provided and thereby obtain access to communications in electronic storage.

With regard to an employer’s review of employee emails sent through web-based email accounts like Gmail or Hotmail, the most frequent scenario confronted by courts is one in which a former employer accesses the web-based email of a former employee, looking for evidence of malfeasance. In these cases, the former employer is typically able to access the former employee’s web-based email account because the employee has saved her username and password on a device provided by the employer, which was returned at termination, or failed to delink an account from such a device. In these cases, courts have been reluctant to punish the former employee for failing to take appropriate steps to secure their own personal, and allegedly private, communications.

For example, a district court in New York considered an employee’s claim that his former employer’s review of emails in his Hotmail account after his termination violated the SCA because it was unauthorized. The defendant argued that its review of the emails did not violate the SCA because the employee had implicitly authorized its review of the emails on his Hotmail account because the employee had stored his username and password on the employer’s computer system or forgot to remove such an account from an employer-provided phone before returning it.

The court rejected this argument, holding that it was tantamount to arguing that, if the employee had left his house keys on the reception desk at the office, he would have been implicitly authorizing his employer to enter his home without his knowledge. The court also noted that the employer’s computer usage policy did not provide the necessary authorization because it only referred to communications sent over the employer’s systems.

Likewise, a district court in Ohio confronted with similar facts, refused to hold the plaintiff responsible for his own failure to safeguard his information. In this case, the employee had turned in a company-issued blackberry upon termination without first deleting the Gmail account he had added to the phone. The former employer reviewed the emails in the former employee’s Gmail account, and the former employee alleged that this violated the SCA. The former employer argued that the former employee had negligently or implicitly consented to their review of the emails in her Gmail account by returning the blackberry to the company without deleting the account. However, the court held that the employee’s “negligence” in leaving the Gmail account on her phone when she turned it in was not tantamount to her authorizing the defendant to review the emails on her Gmail account.

However, a federal district court in California reached a different result in a case involving text messages. In this case, a company had sued its former employee for misappropriating trade secrets when it discovered, upon his termination, a number of text messages on the former employee’s company-issued iPhone that documented his misappropriation. The former employee had forgotten to delink his Apple account from the company phone he returned, and thus, his text messages continued to go to the phone — and his former employer. The court granted the company’s motion to dismiss the former employee’s counter claim that the company’s review of his text messages violated the SCA. The court held that text messages stored on phones are not in “electronic storage” within the meaning of the SCA, citing a Fifth Circuit case that reached the same conclusion about text messages. Of course, a violation of the SCA is not the only issue in these cases.

For example, in this case, the employee also alleged that his employer had invaded his privacy. However, the court held that the employee had no reasonable expectation of privacy in a company-owned phone that was no longer in his possession. In contrast to the two cases above, the court found that the employee’s failure to undertake precautions to maintain the privacy of his text messages showed he had no right to exclude others from accessing them.

The main lesson from these cases is that, if an employer wants to have the ability to review all employee communications that take place in the workplace, the employer needs to have, at a minimum, a policy that specifically provides for the right to monitor and review, for legitimate business reasons, any work-related communications made by the employee on a device provided by the company or a personal device used for work purposes. (Although the SCA does not require any showing about the employer’s motives in accessing the emails, a traditional invasion of privacy analysis would take this into account.) As a practical matter, the employer may not have the ability to access such accounts, but where access is available, this policy language is critical.

By Kevin A. Fritz, Andrew R. Cockroft, and Craig B. Simonsen

Seyfarth Synopsis: Petitioner to the Supreme Court claims that the Sixth Circuit engaged in a “separate but equal” rationale when it rejected her claim that her employer discriminated against her based on race after the employer allegedly acquiesced to a Caucasian family’s request that no African American caregivers provide care to their family member.

In a thought provoking case recently filed before the U.S. Supreme Court, the petitioner, Ms. Jill Crane, asks “whether a race discrimination claim exists under 42 U.S.C. § 1981 where a nursing supervisor has been excluded from providing care or direction concerning care to a patient based solely on her race?” Petition for Writ of Certiorari (Petition), Crane v. Mary Free Bed Rehabilitation Hospital, No. 15-1206 (March 24, 2016).

The underlying case concerns an employer who provides acute care rehabilitation for patients with brain and spinal injuries. Ms. Crane, an African-American, had been employed as a part-time nursing supervisor. In December 2010, another nursing supervisor allegedly told Ms. Crane that a “Caucasian patient’s family had requested that no African-American caregivers provide care for the patient.” Crane v. Mary Free Bed Rehabilitation Hospital, No. 15-1358 (6th Cir. December 11, 2015).

Ms. Crane claimed that, in enforcing the race-based caregiver request, the employer’s action constituted racial discrimination. The employer, while denying that it honored the request, also suggested that even if the request had been honored, no aspect of the Ms. Crane’s employment changed in any way because of the request. “She had the same work hours, responsibilities, duties, status, pay, and benefits after she heard of the request as she did before and, thus, suffered no adverse action.” Id. Also, as a supervisor, the employer claims, Ms. Crane was not responsible for direct patient care. Therefore, the argument continues, any such policy would not have affected her since she would not have been reassigned to accommodate the alleged request.

Subsequently, Ms. Crane applied for another position, which was awarded to different candidate who was White. The employer contended that the successful candidate’s “qualifications were objectively superior” to Ms. Crane’s. Ms. Crane alleged that she was denied the position “because of her race and in retaliation for engaging in certain protected activities.” Id. The District Court granted the employer’s motion for summary judgment.

The Sixth Circuit Court of Appeals agreed, finding that Ms. Crane suffered no adverse employment action. Indeed, it distinguished any potential “de minimis or temporary” impact on an employee from actionable discrimination. It found that “an adverse employment action is ‘a materially adverse change in the terms and conditions of [Ms. Crane’s] employment’… and generally involves material changes in employment status such as ‘hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” The Sixth Circuit Court cited to Hollins v. Atl. Co., Inc., 188 F.3d 652 (6th Cir. 1999) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

In the Nursing Supervisor’s Petition she states that the Sixth Circuit “accepted the District Court’s finding that while race-based assignments may be an adverse employment action, as to her, it wasn’t because the employment action was merely temporary and as a supervisor she did not have assigned responsibility to care for the patient.” The Sixth Circuit, Ms. Crane argues, is in conflict with the Seventh and Eleventh Circuit Courts, which “have held that the Civil Rights Act is violated where an employer makes an assignment excluding a protected class of employees based on [a] customer’s or patient’s preference.” Ms. Crane cited to Chaney v. Plainfield, 612 F.3d 908 (7th Cir. 2010), which involved an African-American certified nursing assistant that was prohibited from caring for a White resident, and Ferrill v. Parker Group, Inc.,168 F.3d 468 (11th Cir. 1999), that  involved a telephone marketing corporation that “would segregate employees, when requested by customers, by assigning separate calling areas and scripts according to race.”

Ms. Crane iterates that the Sixth Circuit engaged in a “separate but equal” rationale, which was provided in Plessy v. Ferguson, 163 U.S. 537 (1896), had long been overruled by cases such as Brown v. Board of Education, 347 U.S. 483 (1954), which held that “separate but equal does not mean there is no racial discrimination.” Indeed, Ms. Crane’s Petition argues that the decision is “contrary to the Civil Rights Act, where there is no circumstance in which segregation based on race is valid regardless of time.”

It may well be that the Sixth Circuit viewed this case as representing a onetime occurrence; the outcome of which might have been different if Ms. Crane had in fact had her duties changed because of the request. It will be interesting to see if the Supreme Court considers the Ms. Crane’s case and whether it is persuaded that an employer may have to litigate allegations of segregation based on race where the alleged segregation was temporary and did not impact the employee’s terms and conditions of employment.

By Christopher W. Kelleher

Stock Image:The EEOC recently released its Proposed Enforcement Guidance on Retaliation, which is not law, but will shape how the agency investigates retaliation charges going forward.  The report, which replaces the 1998 version, offers a look into the EEOC’s expansive view of its jurisdiction.

While the EEOC emphasizes that charges of retaliation “essentially doubled” between FY 1998 and 2014, the report fails to mention that according to the EEOC’s own statistics, FY 2014 saw the lowest percentage (2.9%) of “reasonable cause” determinations in that same period.

An employee alleging retaliation must prove that he or she engaged in protected activity, that is, participated in an EEO activity or opposed an unlawful employment practice. The employer must then take an “adverse action” against the individual, who must establish a causal connection between the protected activity and the adverse action.

According to the EEOC, protection for participating in an EEO activity applies even if the underlying charge has no merit, was not timely filed, or lacked any reasonable basis. This protection extends to internal complaints as well. This new emphasis makes it more difficult to discipline employees for legitimate reasons. For instance, the EEOC’s Proposed Guidance expressly disagrees with a recent Seventh Circuit opinion holding that an employer lawfully terminated an employee for shouting during mediation, “you can take your proposal and shove it up you’re a__ and fire me and I’ll see you in court.” Benes v. A.B. Data, Ltd., 724 F.3d 752, 753 (7th Cir. 2013).

The opposition clause, on the other hand, requires some degree of reasonableness, but even advising an employer of intent to file a charge or threatening to complain in broad or ambiguous terms insulates an employee from discipline, according to the EEOC.

Although many district courts disagree, the EEOC says that an “adverse action” can include warnings, reprimands, and even actions outside of work that have “no tangible effect on employment” as long as it might well dissuade a reasonable person from engaging in protected activity. And while the Supreme Court requires “but for” causation to prove Title VII retaliation claims, the agency interprets this concept to mean that charging parties may establish causation by offering a “convincing mosaic” of circumstantial evidence, including any “bits and pieces from which an inference of retaliatory intent might be drawn.”

The report offers several “best practices” to avoid retaliation charges, which include maintaining written anti-retaliation policies, offering trainings, and reviewing consequential employment actions. Employers who want to preserve the ability to discipline employees should maintain vigorous complaint investigation policies and consistently apply discipline procedures using clearly defined policies.

The EEOC is accepting public input at www.regulations.gov until February 24, 2016.

If you have questions regarding these proposed regulations, please contact the author, or your Seyfarth attorney.