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by M. McClure on Oct 8, 2013 at 9:09 AM

EEOC The federal government shutdown continues, and although the EEOC offices are impacted by the closure, the requirement for an employee to file a charge of discrimination within 180 days of the discriminatory conduct remains.

According to the EEOC shutdown notice, which can be found on the EEOC website at http://www.eeoc.gov/eeoc/shutdown_notice.cfm, there are currently only a limited number of services available during the shutdown. Although many of the services provided by the EEOC are currently unavailable, the clock is still running for employees who are seeking to file a charge of discrimination against an employer. Thus, In Arkansas, the requirement to file a charge within 180 days of the discriminatory conduct is still in effect.

The EEOC's mediation services and the EEOC's litigation efforts are suspended during the shutdown.

 

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by M. McClure on Nov 10, 2011 at 3:12 PM

Payroll errors subject to three year statute of limitationsThe Arkansas Supreme Court recently answered a certified question from the United States District Court seeking a determination of the statute of limitations for violations of the Arkansas Minimum Wage Act (AMWA). The question is an important one because the statute on the AMWA does not have an express statute of limitations.

In Douglas v. First Student, Inc, Petitioners, who were all employed by Respondent as public school bus drivers or dispatchers, claimed that Respondent failed to compensate them for regular and overtime wages in weeks in which they worked more than forty hours. Petitioners filed a class-action complaint in federal district court, alleging violations of the federal Fair Labor Standards Act and the Arkansas Minimum Wage Act. Respondents opposed Petitioners' motion to amend their complaint, contending the amendment would be futile because Petitioners' AMWA claims were barred by the three-year statute of limitations set forth in Ark. Code Ann. 16-56-105.

Justice Gunter, writing for the Court, stated that the issue is: What is the appropriate statute of limitations for a private cause of action pursuant to A.C.A. §11-4-218(e)? The Arkansas Supreme Court determined that a three-year statute of limitations would apply to private causes of action brought pursuant to AMWA.

The Court revisited its holding in Miller Brewing Co. v. Roleson to clarify that the application of a five-year statute of  limitations period in that case was appropriate only because two conflicting limitation periods applied. Where two or more limitations period apply to a cause of action, the statute with the longest limitation period will be applied as a general rule.

Bottom line: A three-year statute of limitations will apply to private causes of action brought pursuant to AMWA.

 

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by M. McClure on Sep 12, 2011 at 2:49 PM

Individual Liability for Retaliation in ArkansasThe Arkansas Supreme Court recently answered a certified question from a federal court regarding whether managers may be personally liable in retaliation cases brought under the Arkansas Civil Rights Act. The question is an important one because most courts have found that individuals are not liable for retaliation under Title VII of the Civil Rights Act, the federal discrimination law. 

In Calaway v. Practice Management Service, Ms. Calaway complained to the office manager about sexually harassing comments from her physician-employer.  Calaway asserts that once the physician learned of Calaway’s complaints, he immediately terminated her employment.  

Calaway filed her lawsuit in federal court, alleging that she worked in a hostile work environment and that Practice Management and the physician retaliated against her.  Her lawsuit sought to hold Practice Management and the physician liable under Title VII and the Arkansas Civil Rights Act. 

The Arkansas Supreme Court determined that the Arkansas Civil Rights Act allowed a person to be held individually liable for retaliation.  The Court reasoned that the section of the statute that concerns retaliation unambiguously refers to a "person."  The court looked to the plain meaning of the word "person" and interpreted it to mean an individual, thus creating individual liability for retaliation claims.

Bottom Line:  Until the Arkansas legislature changes the state statute regarding retaliation, management and human resources employees could be personally liable for business decisions that create retaliation complaints.  Individual liability does not exist under Title VII, so it would be up to the Arkansas legislature to amend the Arkansas Civil Rights Act to bring it in line with federal law.

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by M. McClure on Apr 8, 2011 at 2:31 PM

EEOC deadlines for discrimination litigationIn a recent case, Frazier v. Vilsack, the Eighth Circuit upheld the dismissal of a Title VII racial discrimination case filed one day after the expiration of the statute of limitations.  This is a clear example of how seriously courts take deadlines.  In Frazier, the employee filed his lawsuit against a government employer 96 days after the EEOC mailed him the right-to-sue letter.  Under Title VII, an employee has 90 days from the time the notice is received to file suit against the employer. 

The district court found that the right-to-sue letter did not arrive until five days after the date the letter was issued.  Therefore, the employee did not file his suit for 91 days, one day past the statute of limitations.  The Eighth Circuit noted that it was not clear whether Title VII’s statute of limitations were jurisdictional or an issue of equitable tolling, but that it did not matter.  One day late is still too late.  The employee tried to argue that he didn’t receive the right-to-sue letter until after March 18th, the day the trial court found the letter arrived, but could not provide evidence to support his claim.  He also argued that he did not always open his mail on the day it arrived, and therefore would not have had notice until after the 18th.  The Court held that such arguments had no impact on the statute of limitations.  

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by M. McClure on Jul 2, 2010 at 11:05 AM

Medical leave can be a reasonable accommodation under the ADAI recently taught a semester of Employment Law at the UALR Bowen School of Law, and the most difficult topic for my very talented students seemed to be the intersection of the ADA, FMLA and Workers Comp statutes.  Most HR professionals would not be surprised by this observation because they struggle with these statutes on a daily basis. Well, it's all about to become even more complicated.

Several courts have recognized that time away from work can be a reasonable accommodation under the ADA. And, the recent amendments to the ADA suggest that the statute will cover many more employees.  The EEOC's website states it pretty clearly: "The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis." 

This change will mean that employers will need to consider the ADA's impact on an employee's request for medical leave.  A recent article by Michael J. Lotito suggests that courts will often consider two questions, among others, when determining whether medical leave is a reasonable accommodation under the ADA: " (1) would the leave fulfill its medical purpose? (i.e., would the employee be able to perform the essential functions of his or her job upon return to work); and (2) would the employee's return to work be relatively close in time?"  Lotito correctly points out that no bright line exists where ADA accommodations are concerned, and that every request for leave should be examined individually. 

Although the EEOC's regulations interpreting the amended ADA were expected out this summer, it looks like they will be delayed.  In the meantime, employers should be aware that the amended ADA could affect the decisions that they make when granting or denying medical leaves.  

 

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by M. McClure on Apr 27, 2010 at 11:51 AM

Emails in  Employment LitigationMost of us have heard stories about emails in the workplace resurfacing in litigation. So, the facts of Elam v. Regions Financial Corp. are not surprising.

In Elam v. Regions Financial Corp., a newly hired teller was frequently sick at work and later discovered that she was pregnant and suffering from morning sickness.  The bank allowed the teller to have a drink at her station and to arrive late due to morning sickness.  The teller had performance issues other than her attendance.  She would leave her cash drawer unlocked and sometimes leave her station in the middle of a transaction.  Although the teller was reprimanded, her behavior did not improve.  Her supervisor sent an email to HR requesting to fire the "pregnant girl teller." Upon HR's approval, the teller was fired.  The teller sued the bank under Title VII for pregnancy discrimination. 

The 8th Circuit Court of Appeals upheld the lower court's ruling in favor for the bank.  The Court did not find any direct or indirect evidence of discrimination.  The supervisor's reference to the teller as "the pregnant girl teller" was not found to be discriminatory because references to a protected status without reflecting bias is not direct evidence of discrimination.  The bank had provided numerous accommodations and had non-discriminatory reasons for terminating her.  Finally, the Court noted that pregnancy does not require special treatment.

The case ended well for the bank.  However, this single email was likely a significant reason for the litigation.  Avoiding litigation is more important than winning litigation.  Remind your workplace that email communication is communication nonetheless and could be the basis of litigation.

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by M. McClure on Mar 15, 2010 at 8:55 AM

EEOC The EEOC seems to send a lot of charges to employers just before the end of each fiscal quarter, which is coming right up on March 31st.  After investigating the facts of an EEOC charge, one of the first decisions that an employer must make is whether to mediate.  

EEOC mediation provides a quick, confidential way to settle a dispute with an employee.  And, we are fortunate that the Little Rock EEOC office is particularly good at mediation.  Here are some issues to consider when deciding whether to participate in EEOC mediation. 

Does the employee still work for you?

Defending a charge is much more complicated when the employee still works for your company.  The risk of retaliation is significant because any adverse action against the employee, even where warranted, may create the appearance of retaliation.  Mediation provides a forum in which the employer and employee can reach a compromise to which both parties agree.  In some cases, the employer may even be able to negotiate the employee's resignation from the company, although that won't be inexpensive. 

How good is your evidence?

No employer is perfect, and sometimes the evidence of the issue is just not as good as it should be. Important documents may be missing or were never created.  Witnesses to the conduct may have already left the company, perhaps not voluntarily, and their recollection of the events may be unpredictable. 

Is this a matter you need to resolve quickly? 

You may have a business reason that is completely unrelated to the charge that requires a quick resolution. Defending an EEOC charge will cost time and money, and those resources may be better directed toward a settlement.   

Is this an issue that you would like to keep confidential? 

The mediation process is confidential; complaints filed in court are a matter of public record. 

Are you willing to put something - probably some cash - on the table?

Don't come to mediation with nothing to offer.  If the employee is still working for the company, you may be able to offer non-cash items like training or reassignment in the company.  If you plan to settle a charge with non-cash benefits, make sure they have significant value or the mediator may come to the conclusion that you are not negotiating in good faith.  

Bottom line: Mediation is not the answer for every charge, but in some instances, it can resolve a complicated problem quickly and confidentially.  

 

 

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