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In Federal Express Corp. v. Holowecki, the United State Supreme Court ruled that the EEOC’s Intake Questionnaire adequately meets the requirements of a “Charge” to trigger an employee’s rights to sue his or her employer in court. The plaintiff submitted to the EEOC an Intake Questionnaire with an affidavit contending that her employer was engaging in age discrimination. The EEOC did nothing with the Questionnaire for six months. The employer was not notified and no charge number was assigned. The employee subsequently filed a Charge of Discrimination and then filed suit.

The Age Discrimination in Employment Act of 1967 (ADEA) requires that “[n]o civil action … be commenced … until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission” (EEOC), 29 U. S. C. §626(d), but does not define the term “charge.” After petitioner delivery service (FedEx) initiated programs tying its couriers’ compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 “Intake Questionnaire” and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent’s action, contending she had not filed the “charge” required by §626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx’s motion. The Second Circuit reversed.

Supreme Court holding in a nutshell: Documents other than a formal EEOC “Charge” can serve as a Charge under the right circumstances. The Court, showing the EEOC a great deal of deference in its administrative interpretation, held that an effective ADEA charge is one that includes the information “required by the [EEOC] regulations, i.e., an allegation and the name of the charged party,” and that should “be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.”

More detailed holding from the official Syllabus:

1. In addition to the information required by the implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a “charge” under the ADEA it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.

(a) There is little dispute that the EEOC’s regulations-so far as they go-are reasonable constructions of the statutory term “charge” and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR §1626.3 says: “charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in acts in violation of the Act.” Section 1626.8(a) identifies information a “charge should contain,” including: the employee’s and employer’s names, addresses, and phone numbers; an allegation that the employee was the victim of age discrimination; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. Section 1626.8(b), however, seems to qualify these requirements by stating that a charge is “sufficient” if it meets the requirements of §1626.6-i.e., if it is “in writing and … name[s] the prospective respondent and … generally allege[s] the discriminatory act(s).” That the meaning of charge remains unclear, even with the regulations, is evidenced by the differing positions of the parties and the Courts of Appeals on the matter.

(b) Just as this Court defers to reasonable statutory interpretations, an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is ” ‘ plainly erroneous or inconsistent with the regulation,’ ” Auer v. Robbins, 519 U. S. 452 . The Court accords such deference to the EEOC’s position that its regulations identify certain requirements for a charge but do not provide an exhaustive definition. It follows that a document meeting §1626.6’s requirements is not a charge in every instance. The language in §§1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. While the regulations’ structure is less than clear, the relevant provisions are grouped under the title, “Procedures-Age Discrimination in Employment Act.” A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents of a charge.

(c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights.

(d) The EEOC acted within its authority in formulating its request-to-act requirement. The agency’s policy statements, embodied in its compliance manual and internal directives, interpret not only its regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a “measure of respect” under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461 , whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218 . Here, the relevant interpretive statement has been binding on EEOC staff for at least five years. True, the agency’s implementation has been uneven; e.g., its field office did not treat respondent’s filing as a charge, and, as a result, she filed suit before the EEOC could initiate conciliation with FedEx. Such undoubted deficiencies are not enough, however, to deprive an agency that processes over 175,000 inquiries a year of all judicial deference. Moreover, the charge must be defined in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws, see 29 U. S. C. §626(d), and disseminating information about those laws to the public, see, e.g., Civil Rights Act of 1964, §§705(i), 705(g)(3).

(e) FedEx’s view that because the EEOC must act “[u]pon receiving … a charge,” 29 U. S. C. §626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual’s right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106 . Moreover, because the filing of a charge determines when the ADEA’s time limits and procedural mechanisms commence, it would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422 . Pp. 12-13.

2. The agency’s determination that respondent’s December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.

(a) Respondent’s completed Form 283 contained all the information outlined in 29 CFR §1626.8, and, although the form did not itself request agency action, the accompanying affidavit asked the EEOC to “force [FedEx] to end [its] age discrimination plan.” FedEx contends unpersuasively that, in context, the latter statement is ambiguous because the affidavit also stated: “I have been … assur[ed] by [the EEOC] that this Affidavit will be considered confidential … and will not be disclosed … unless it becomes necessary … to produce the affidavit in a formal proceeding.” This argument reads too much into the nondisclosure assurances. Respondent did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential and, even then, consented to disclosure of the affidavit in a “formal proceeding.” Furthermore, respondent checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx. The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge.

(b) Because the EEOC failed to treat respondent’s filing as a charge in the first instance, both sides lost the benefits of the ADEA’s informal dispute resolution process. The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance.

Sources: Scotus Wiki

Democrats on Congressional Hill are voicing opposition to the proposed changes to the FMLA implementing regulations recently announced by the U.S. Department of Labor.

Senators Chris Dodd (D-CT) and Edward Kennedy (D-MA) recently expressed their concern that the proposed changes would discourage employees from exercising their right to take family and medical leave. Senator Dodd, the Subcommittee chairman and sponsor of the original FMLA, identified proposals allowing employers to require employers to provide medical recertification every six months and allowing employers to contact the employee’s health care provider directly as areas of particular concern.

You can read more about the issue at The FMLA Blog.

I seem to be queried almost daily these last few weeks about the intricacies of the Texas Primary/Caucus system. Believe me when I tell you that it is not something they cover in law school.

So to the rescue comes this NPR interview of Kenneth Molberg. Mr. Molberg is a friend who also is a member of the Texas State Democratic Executive Committee. He is also currently running for the bench in Dallas County.

Ken does a great job explaining both the mechanics and history of the so-called Texas Two-Step primary/caucus system. Give it a listen and, as we say in Texas: Vote Early and Often!

Hint: Click the “Listen Now” button at the top of the page.

Two interesting cases are being argued this week in the Supreme court:

On Tuesday, the Court is scheduled to hear argument in Gomez-Perez v. Potter (06-1321), on whether the Age Discrimination in Employment Act bars retaliation by public employers for the filing of age discrimination complaints.

On Wednesday, the Court is scheduled to hear oral argument in CBOCS West v. Humphries (06-1431), on whether employees may bring race retaliation claims under 42 USC 1981.

In Gomez-Perez v. Potter, Myrna Gomez-Perez, a 45-year-old employee of the U.S. Postal Service, filed an age discrimination complaint after her supervisor denied her transfer request. After filing her complaint, Gomez-Perez alleges her supervisors and co-workers retaliated against her, and that her hours were drastically reduced. She appealed a summary judgment ruling against her in the U.S. District Court for Puerto Rico, which did not reach the question of whether the ADEA’s private cause of action for federal employees alleging age discrimination implicitly includes a retaliation cause of action.

On appeal, the First Circuit noted that the parallel ADEA provision governing private employers expressly provides for retaliation claims and reasoned that Congress would have said so explicitly had it intended for a similar cause of action against federal employers. The Court was not persuaded that Congress meant to prohibit “discrimination and retaliation” when it said merely “discrimination,” and held that the ADEA does not include a cause of action for retaliation by federal employers.

In the Humphries case, Hedrick Humphries, an African-American associate manager at a Cracker Barrel restaurant, alleged that he was fired because he complained about his supervisor’s racially discriminatory behavior. Humphries’s claims under Title VII were dismissed for procedural deficiencies, but the Seventh Circuit held that Section 1981 authorizes suits where employers retaliate against employees complaining of racial discrimination, and Humphries should be allowed to proceed under that statute.

At the Supreme Court, the company argues that there is disagreement in the lower courts over whether Section 1981 in its amended form includes retaliation in its ban of racial discrimination in contractual relations. The company argues that under a straightforward reading of the statutory text, employer conduct is not actionable under Section 1981 unless it is racially motivated, and noted that a retaliatory termination is based on an employee’s conduct (the allegation of racial discrimination), not on the employee’s race.

In his opposition brief, Humphries asserted the correctness of the Seventh Circuit ruling and also noted language in the legislative history of the Civil Rights Act of 1991 indicating Congress intended to expand Section 1981’s scope to claims of “harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” The brief also disputed that the courts are inconsistently interpreting the amended statute, noting that all eight circuits to address the issue have held that Section 1981 prohibits retaliation.

Sources: ScotusWiki, which utilized material obtained from ScotusBlog.

Lawyers for Tyson Foods are challenging a U.S. appeals court ruling that compensable work includes the putting on and taking off of protective work clothing and are calling on the Supreme Court to resolve what the company claims to be a conflict in the courts of appeal.

Monday’s petition for a writ of certiorari was filed with the Supreme Court by attorneys representing poultry processor Tyson Foods Inc., which faces more than 30 wage-and-hour lawsuits on behalf of tens of thousands of factory worker.

The original suit was brought by employees against Tyson in federal court in Pennsylvania, seeking back pay and other relief for time that they spent putting on, taking off, and washing certain sanitary and protective clothing before and after their shifts and at breaks. The Fair Labor Standards Act (”FLSA”) requires employers to compensate employees for overtime work (work above 40 hours per week) at one-and-a-half times their normal rate of pay. Tyson seeks review of the issue of whether the activities at issue constituted “work.”

The Court has already held that the time spent walking between changing and production areas is compensable work under the FLSA in 2005 opinion - IBP, Inc. v. Alvarez. We posted about that decision here. The language of the unanimous decision in the Alvarez case would lead me to believe that the Court would decide against Tyson here. However, the membership of the Court has changed somewhat since Alvarez so perhaps this gives Tyson the hope that the Court might swing the back the other way on this issue.

A Circuit Court jury Friday awarded a former Honolulu city official more than $3 million dollars, upholding her claim that she lost her job in 2003 for blowing the whistle on what she saw as wrongdoing in the administration of the former Mayor.

The jury deliberated a half-day before returning a verdict in favor of the plaintiff, awarding her just more than $1 million in lost wages and retirement benefits and $2 million in general damages for pain and suffering inflicted on her by city officials.

According to the news report, the plaintiff’s attorney stated that in the weeks before the trial, he offered to settle the whistleblower case for $75,000, but defense counsel never offered more than $5,000.

Hmm, me thinks someone misevaluated this case.

Source: The Honolulu Advertiser

Hat tip: Jottings by an Employer’s Lawyer

Chamber of Commerce v. Brown has been set for argument by the Supreme Court for March 19th. The Court is set to decide whether the National Labor Relations Act preempts a California law barring private employers from using state grant or program funds to influence union organizing campaigns.

You can find the case briefing here.

Source: ScotusBlog

Yes friends, it’s time once again to issue our Questionable HR Management Award Grand Prize. As you know we periodically hand out this prestigious award to a company that has shown particularly bad HR judgment and a complete lack of common sense.

Today the award goes to Packaging Corporation of America in Counce, Tenn. for its inadvisable termination of an employee in response to said employee’s election to the Mississippi State Senate. According to the Clarion Ledger, Freshman state Sen. Eric Powell learned two days after his swearing-in last week that he had been fired from his regular job. Powell, said his firing came as a result of his election as a state senator in Mississippi.

“All of a sudden, with no phone call or anything, just a letter in the mail after 11 1/2 years of service,” said Powell, who is married and has three children. “That’s the kind of thanks I get for hard work and loyalty. It’s the kind of thing I came to the Senate on behalf of working people to fight.”

Labor Prof Blog, who put me on to the story, noted that it seems pretty clear that the termination was directly related to Mr. Powell’s election. This was especially boneheaded given the fact that the company initially encouraged Powell in his run for office.

Now thanks to this bizarre HR snafu, instead of having an employee in the state senate, PCA likely has:

1) a union grievance (Powell was a union member and the collective bargaining agreement specifically allows for employee leave when running for public office and only requires resignation if the office obtained is a full-time job);

2) a lawsuit (many states have statutory prohibitions on retaliation against employees for serving in public office); and

3) a state senator that is less than enamored with the company.

We therefore proudly award Packaging Corporation of America our Questionable HR Management Award! Feel free to print out the award emblem and wear it with pride.

Ross Runkle over at Ross’ Employment Law Blog has begun an excellent series on President Bush’s NLRB Legacy. In part 1 he addressed the Bush Board’s elimination of Weingarten rights for non-union employees. Part 2 address restrictions on employee use of employer’s email for union solicitation.

You can follow the series here.