January 10, 2015

Time for an Annual Review of Personnel Policies

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As 2014 turns to 2015, employers should take time to carefully review their personnel policies in hopes of avoiding a challenge from the Equal Employment Opportunity Commission (“EEOC”) in the coming year.  In 2014, as part of its Strategic Enforcement Plan, the EEOC pursued claims against employers with inflexible personnel policies – implicitly recognizing that, by challenging a policy, the EEOC is often able to identify many applicants or employees with a claim for relief and obtain a greater amount of media attention and damages.  If the EEOC stays the course in 2015, employers unwilling to make accommodations or engage in individualized applications of their personnel policies may find themselves in expensive and time consuming legal proceedings.
Leave / Attendance Policies
One of the EEOC’s primary targets is inflexible leave policies, including “no fault” attendance policies.  Under a no fault attendance policy, an employer will penalize or discipline employees for absences without considering the reason for the absence.  The EEOC takes the position that such blanket policies can discriminate against individuals with disabilities.  Specifically, the EEOC alleges that employers are required by law to excuse some absences caused by a disability as a reasonable accommodation.  Employers that refuse to engage in an individualized interactive process with disabled employees who need to be absent from work may find themselves in an expensive battle with the EEOC.  See EEOC Lawsuit against AutoZone, Inc., (EEOC alleges terminations pursuant to AutoZone’s no fault attendance policy constituted disability discrimination); Verizon’s Settlement with EEOC  (Verizon agreed to pay $20 million to settle lawsuit in which EEOC challenged Verizon’s no fault attendance policy).
Policies Relating to Arrests and Convictions
Although many employers ask applicants whether they have ever been arrested or convicted of a crime, the EEOC is targeting employers that refuse to hire individuals pursuant to such policies when the policies, as applied, either disparately impact minorities or fail to take into account individualized circumstances.  The EEOC takes the position that any inquiry into an applicant’s criminal history should be job-related, be consistent with business necessity, and consider the nature and timing of the offense.  See EEOC Press Release; EEOC Guidance on Arrest and Conviction Records.
Drug Testing Policies    
Even employers applying their drug testing policies in an inflexible manner may find themselves involved in a battle with the EEOC.  The EEOC recently sued a health care facility for revoking a conditional offer of employment when the employee refused to take a urine-based screen.  The individual requested a different method of drug testing because of her disability, which the employer refused.  The EEOC took the position that alternate forms of drug testing must be made available to applicants and employees who are unable to provide urine samples because of a disability.  See EEOC Press Release
Other Policies Under Attack
The policies mentioned above are not the only ones currently under attack by the EEOC.  The EEOC is closely scrutinizing any employment policy applied by employers in hopes of identifying a group of people on whose behalf the EEOC can seek relief.  Other policies that have been targeted by the EEOC include those related to modified work schedules, including policies that forbid employees from working alternate schedules, and maximum leave policies, including policies terminating employees at the end of a fixed medical leave period rather than bringing the employees back to work with a reasonable accommodation.  See Sixth Circuit Opinion EEOC v. Ford Motor Company; New Jersey health care employer agreed to pay $1,350,000 in June to settle case brought by the EEOC challenging the employer’s policy of limiting leaves of absence to 12 weeks.
The EEOC’s recent focus on inflexible personnel policies signals a troubling new era – an era in which an employer’s argument that it treated everyone the same, or that it treated everyone consistently, may not be enough to absolve the employer of liability and, instead, may actually result in liability for the employer.  Additionally, while employee requests for accommodations and/or exceptions may create staffing uncertainty and may be a burden on the employer and coworkers, an employer’s denial of such can lead to costly ADA claims for failure to accommodate.  In 2015, employers need to be alert to policies that may disparately impact a particular segment of the population.
The members of SKO’s Labor and Employment Group are available to analyze your company’s policies, provide information on best practices, and discuss anything in this notice in more detail. Click here to access the group.