Charge It!

That's what the U.S. Supreme Court told the Equal Employment Opportunity Commission (EEOC) in an opinion handed down yesterday, Federal Express Corp. v. Holowecki, et al.

The case addressed 2 questions: (1) What is a charge under the Age Discrimination in Employment Act (ADEA)? (2) Did the former employee file documents with the EEOC sufficient to form a charge of discrimination under the ADEA?

Some brief background: The underlying suit was brought by 14 former employees who worked for FedEx as couriers. They claimed that new policies implemented by FedEx which addressed compensation and performance of couriers were discriminatory against older employees. One employee, Patricia Kennedy, filed an intake questionnaire with the EEOC along with a 6-page affidavit detailing what she alleged were the discriminatory practices. The intake questionnaire was never processed, and FedEx was never told that any type of complaint had been lodged against it.

The ADEA requires an aggrieved employee wait 60 days after filing a charge with the EEOC before filing suit in federal court. (This differs from Title VII, which requires the aggrieved employee to receive a "right to sue" letter from the EEOC before filing a lawsuit.) Kennedy filed her Intake Questionnaire on December 3, 2001 and then filed an EEOC charge form on May 30, 2002. In the interim, though, she joined in a suit filed by other aggrieved employees on April 30, 2002.

The trial court dismissed Kennedy's suit, stating she had not waited 60 days from the filing of her charge before filing suit. The district court did not treat the 12/3/01 Intake Questionnaire as a charge, but instead looked at the 5/30/02 EEOC charge form as the charge.

The appellate court reversed, stating that the 12/3/01 Intake Questionnaire could have been deemed a charge and, therefore, more than 60 days had elapsed between the filing of that and the 4/30/02 lawsuit.

FedEx asked the U.S. Supreme Court to review the dispute, claiming, among other arguments, that it never had an opportunity to address the claims made in the Intake Questionnaire and that the EEOC's failure to property administer the Intake Questionnaire should not act as a penalty against FedEx.

The Supreme Court disagreed, finding that the Intake Questionnaire and accompanying affidavit were sufficient to meet the EEOC's working definition of "charge" under the ADEA. It should be noted that the word "charge" is not defined in either the ADEA or the implementing regulations. The regulations do shed some light on the contents of a charge but fall short of giving a comprehensive definition.

At first glance, this decision may appear to be a huge boost for employees. In practice, though, the decision might not be worthy of the initial groan it has created among employment law defense counsel. First, remember that this case applies only to the ADEA setting, not to Title VII. Most ADEA charges are handled in the normal way--the employee/former employee files a Charge of Discrimination with the EEOC; the EEOC notifies the employer of the charge, the investigation ensues, and eventually a notice of right to sue letter is issued. Although ADEA plaintiffs can file suit after only 60 days has passed from the filing of the charge, most of them wait until the entire EEOC process plays out before turning to the court system.

We will watch what trends develop, if any, from this case and keep you apprised of those.

Surely you didn't think you were the only one with problem employees. . .

Those of you who know me are acutely (painfully?) aware that I love The University of Tennessee and all things Big Orange. That especially (unfortunately?) includes the football team.

The rash of arrests, missteps, mishaps, and any other word you care to associate with the more-than-I-care-to-count off-field happenings for the team has been and remains embarrassing. The latest arrest came at a time when the football program did not need any more of this kind of publicity--not that it ever needs ANY publicity like this. If you've been following these reports, you know that reporters and writers are hammering home the number of players and incidents involved in such a short period. Those same articles are also mentioning the level of discipline the players are receiving--and the perception that the severity of the punishment depends not on the act, but on the player's spot on the depth chart.

What, you might ask, does this have to do with you? It is illustrative of the importance of consistently enforcing your policies. It is an opportunity for you to see, on a magnified scale, what happens when the perception develops that the rules in the workplace are not being enforced uniformly and fairly.

Can you stop this speculation? Probably not, at least not short of opening your personnel and investigative files for all to see, and even then you'll still have your doubters. An important lesson, though, to take away from this rash of publicity is that there may come a time when you have to defend your decision to differentiate the type of punishment meted out in situations that on the surface appear to be similar. So document any reasons for deviating from the policy and/or precedents, and then be thankful that your decisions don't end up the fodder for someone's blog entry!

FMLA proposed regulations

Here are links to the proposed regulations to the Family and Medical Leave Act published today in the Federal Register.

Part 1: http://frwebgate2.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=746368460603+2+0+0&WAISaction=retrieve

Part 2: http://frwebgate2.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=746470471241+3+0+0&WAISaction=retrieve

Part 3: http://frwebgate2.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=746470471241+30+0+0&WAISaction=retrieve

WOW--That was fast!

Imagine my surprise and, admittedly, excitement, when a headline from one of my legal update services read, "DOL issues proposed FMLA regulations." Of course, what has been on my mind is the immediate application of the FMLA changes coming from the National Defense Authorization Act (see post below).

Alas, 'twas not to be. Although, again admittedly, I did get excited when I realized that the "proposed FMLA changes" meant the proposed changes to the regulations that DOL delivered to the Office of Management and Budget on January 25 (also discussed in the previous post).

So it is with great anticipation that I await for February 11--the day the proposed regulations are published in the Federal Register. Now, the Department of Labor apparently does not guard its pending publications with quite the same ferocious security as you saw with the Harry Potter installments, so there have been some "courtesy" copies of the regulations circulating among those in the labor and employment field. Preliminary review says that the regulations will touch upon changing the definition of "serious health condition" to the extent they recommend doing away with the current "objective test" and instead implement one of the six tests used by other regulatory agencies.

The proposed regulations will also make an attempt to clarify when an employer may make further inquiry into a medical certification when the certification is incomplete. In those cases, the proposed regulations recommend requiring the employer to state why the certification is incomplete and provide the employee with a specified amount of time to cure the deficiency, along with allowing the employer to make direct inquiry with the health care provider when the deficiency remains uncured. (Don't forget those HIPAA authorizations, ladies and gentlemen!)

Stay tuned--the proposed regulations should generate lots of commentary, thoughts, fans and detractors. All of us should get our FMLA fix over the next several months. (Okay, some of us more than others.)