Employment Law

New EEOC Guidance on National Origin Discrimination

Why it matters

For the first time in more than a decade, the Equal Employment Opportunity Commission (EEOC) published new guidance on national origin discrimination. “This guidance addresses important legal developments over the past 14 years on issues ranging from human trafficking to workplace harassment,” agency Chairwoman Jenny R. Yang said in a statement. The new guidance updates the definition of discrimination based on national origin as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group,” and includes examples of “promising practices” by employers to prevent discrimination as well as those that would violate the law. For further assistance, the EEOC also released a small business fact sheet as well as a Q-and-A document. Employers should review the updated guidance to ensure compliance.

Detailed discussion

A lot can change in 14 years, the Equal Employment Opportunity Commission (EEOC) recognized, publishing new enforcement guidance on national origin discrimination to replace a 2002 compliance manual section on the topic. Approximately 11 percent of the 89,385 private sector charges filed with the agency in fiscal year 2015 alleged national origin discrimination, ranging from the unlawful failure to hire, termination, language-related issues, and harassment, the agency noted.

“The increased cultural diversity of today’s workplaces presents new and evolving issues with respect to Title VII’s protection against national origin discrimination,” the agency wrote in the new guidance. “This enforcement guidance will assist EEOC staff in their investigation of national origin discrimination charges and provide information for applicants, employees, and employers to understand their respective rights and responsibilities under Title VII.”

The updated guidance begins with a new definition of national origin discrimination: “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group,” the EEOC explained, whether the employee’s national origin is real or perceived. National origin discrimination also includes discrimination by one national origin group against a member of the same group as well as discrimination based “on an individual’s, or his or her ancestor’s, place of origin.”

A “place of origin” covers a broad range of locations—it may be a country (such as China, Mexico, or even the United States), a former country (like Yugoslavia), or a geographic region that was never a country but is nevertheless closely associated with a particular national origin group (Kurdistan, for example). Title VII also prohibits discrimination against a “national origin group” or an “ethnic group” which the EEOC defined as “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics,” such as Arabs or Hispanics.

Employment discrimination based on national origin may involve perception (a supervisor believes that a worker is of Middle Eastern ethnicity), association (an employee is married to an individual from Mexico and the employer discriminates against her as a result), or citizenship status. National origin discrimination often overlaps or intersects with other forms of discrimination, the EEOC noted, especially racial discrimination and religious discrimination.

One of the additions to the new guidance addressed human trafficking. “When force, fraud, or coercion is used to compel labor or exploit workers, traffickers and employers may be violating not only criminal laws, but also Title VII,” the EEOC said. “In particular, Title VII may apply in trafficking cases if an employer’s conduct is directed at an individual and/or group of individuals based on a protected category, such as national origin.”

For example, an oil industry parts manufacturer that recruits East Indian workers for its U.S. factory and promises individuals they will be well compensated and working under good conditions but then confiscates their documents and restricts their movement, communications, privacy, and worship—while placing no similar restrictions on non-Indian workers—runs afoul of human trafficking laws as well as Title VII’s prohibitions on discrimination based on race and national origin, the agency said.

Language issues are another area where national origin discrimination may come into play, according to the guidance. While employers may have legitimate business reasons for basing employment actions on linguistic characteristics, they should be careful to scrutinize their decisions to avoid tripping over Title VII, which can be violated by accent discrimination, fluency requirements, and English-only policies.

“Due to the link between accent and national origin, courts take a ‘very searching look’ at an employer’s reasons for using accent as a basis for an adverse employment decision,” the EEOC cautioned. “Courts require employers to provide evidence—as opposed to unsupported assertions—to explain such actions.”

The guidance provided several “promising practices” that may help reduce the risk of violations. With regard to recruitment, for example, the agency said that reliance on word-of-mouth recruiting “may magnify existing ethnic, racial, or religious homogeneity in a workplace and result in the exclusion of qualified applicants from different national origin groups,” encouraging employers to “use a variety of recruitment methods to attract as diverse a pool of job seekers as possible,” such as a combination of newspapers of general circulation as well as those directed at underrepresented groups in the workforce.

Employers may also wish to state they are an “equal opportunity employer,” the agency suggested.

Other ways to reduce the risk of discriminatory employment decisions: ask similar questions of all applicants when conducting job interviews to promote nondiscriminatory treatment; consider translating policies into the languages spoken by employees with limited English skills so that workers can understand and utilize the complaint process; and clearly communicate to all employees through policies and actions that a hostile work environment will not be tolerated and that employees who violate the prohibition will be disciplined.

To read the EEOC’s enforcement guidance on national origin discrimination, click here.

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Concrete Company’s Meal Break Policy Legal, Court Affirms

Why it matters

A concrete company did not run afoul of California wage law by depriving workers of meal breaks because employees signed an agreement that provided them with a meal break upon request, a California appellate panel ruled, affirming a verdict in favor of the employer. Granite Rock Company produces a perishable concrete product that requires constant rotation to prevent hardening and pouring within 60-90 minutes to ensure structural integrity. In light of these constraints, the company provided mixer drivers with the option of signing an on-duty meal period agreement that provided them with a meal break upon request. Drivers that did not sign the agreement and were asked to work through a meal period received one hour of special pay. A group of drivers filed a putative class action based on missing meal breaks. Granite Rock argued the agreement and optional payment were valid under state law, and a trial court judge agreed. Affirming the trial court, the appellate panel determined the drivers failed to prove that the employer forced any workers to forgo a meal break.

Detailed discussion

Granite Rock, a concrete company, manufacturers, delivers, and pours concrete. The perishable product requires rotation at all times to prevent hardening and must be poured within 60-90 minutes to ensure its structural integrity. Mixer drivers for the company are tasked with monitoring the rotation of the truck drum, delivering the concrete, and pouring it at the construction sites.

Because of these constraints, the company provided its drivers with the option of signing an on-duty meal period agreement pursuant to Industrial Wage Commission Wage Order 1, which states: “when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.”

Granite Rock posted information about the Wage Order and the company’s agreements and advised drivers that if they did not sign the agreement and were asked to work through a meal, they would receive one hour of special pay.

Five mixer drivers filed suit against their employer, claiming that they were not provided with meal periods as required by law. A trial court certified a class of approximately 200 current and former drivers and tried the case without a jury, finding that Granite Rock did not violate labor laws in its meal period policies.

The plaintiffs appealed, arguing that Granite Rock did not relieve them from all duty and relinquish control over them and how they spent their time, as required by state law, and that making an off-duty meal period available to employees at their election was insufficient to satisfy legal requirements.

But the appellate panel disagreed, affirming the verdict. “There was no evidence at trial that any mixer driver was ever denied an off-duty meal period when he or she requested,” the court wrote. “The evidence showed that any concrete mixer driver who did not sign an On-Duty Meal Period Agreement, or revoked such agreement was provided one hour of pay as required by law. The court further found that because concrete mixer drivers were aware of their rights and exercised those rights in requesting and always receiving off-duty meals when they wanted them, Granite Rock had met its legal obligation with regard to meal periods.”

In addition to the testimony of the drivers themselves, dispatchers testified at trial that drivers preferred to continue working rather than take an off-duty lunch so that they could get paid and be allowed to go home early. Some drivers denoted “no lunch” on their timecards with a “happy face” symbol.

The appellate panel emphasized the appropriateness of Granite Rock’s policies regarding meal periods in the context of the ready mix concrete industry. “When a driver is able to take a duty-free lunch period is dependent on the state of the concrete in his or her truck, and the nature of the construction job to which the driver is attending,” the court explained, and the nature of the concrete mixing and delivering industry makes the scheduling of off-duty meal periods in advance nearly impossible.

“The law is clear that an employer is not required to schedule meal periods in order to comply with their legal meal-period obligations,” the panel wrote. “Moreover, an employer is not required to guarantee or ensure that an employee take a 30-minute off-duty meal period. Rather … the employer’s duty is to provide a 30-minute off-duty lunch period that is free from an employer’s control.”

Mixer drivers were given the opportunity to take an off-duty meal period each day and could freely choose to take it or not, the court said; when a concrete mixer driver requested to have an off-duty meal period, Granite Rock granted the request without fail, and relinquished all control of the employee for the 30-minute period, satisfying the employer’s legal requirements.

To read the decision in Driscoll v. Granite Rock Company, click here.

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Statistical Sampling Allowed by California Appellate Panel

Why it matters

Statistical sampling may be used by the plaintiff class, a California appellate panel ruled, finding that the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes did not effectuate a ban on such evidence. The case involved more than 10,000 security guards who alleged their employer failed to pay them for meal breaks. The class requested to use statistical samples to determine how many of the guards signed on-duty meal agreements during the class period and the employer objected, pointing to the Wal-Mart decision to argue the Justices prohibited such evidence. A trial court decertified the class but the appellate panel disagreed. Distinguishing Wal-Mart—where the class wanted to use statistical sampling to calculate all damages—the court said the security guards only wanted to use the evidence as support for facts that were already established.

Detailed discussion

A trio of security guards at The Wackenhut Corporation filed suit against their employer, alleging the company failed to provide them with off-duty meal and rest breaks, as well as neglecting to provide adequate wage statements. A trial court certified a class of roughly 10,000—13,000 guards in 2010, and the parties agreed in a stipulation to use statistical sampling in lieu of document production or inspection.

However, after the U.S. Supreme Court released its ruling in Wal-Mart Stores, Inc. v. Dukes in 2011, the employer moved for decertification. The Justices’ decision—refusing to permit a “Trial by Formula” where the plaintiffs used a sample of class members to establish liability and damages because it would prevent Wal-Mart from litigating its statutory defenses to individual claims—constituted a significant change in law justifying reconsideration of class certification, the employer argued.

A trial court granted the motion, ruling that individualized issues predominated the dispute and that there was no way to conduct a manageable trial of plaintiffs’ claims. The security guards appealed and a California appellate panel reversed.

The trial court’s reliance on Wal-Mart to support decertification for the security guards’ claims “overextended” the holdings of the Supreme Court case, the panel said, particularly in light of the Court’s subsequent decision in Tyson Foods, Inc. v. Bouaphakeo. In that case, the Justices approved of the use of statistical sampling, writing that its “permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”

Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on the elements of the underlying cause of action, the Court wrote in Tyson.

Applying this standard, the appellate panel found the security guards could use the statistical sampling as they had proposed. “[S]tatistical evidence was proposed only for the limited purpose of determining how many employees had signed on-duty meal agreements lacking revocation language during the class period,” the court explained.

The plaintiffs had already established through deposition testimony that Wackenhut required all employees to sign on-duty meal agreements, that prior to 2004 most of the agreements lacked the required revocation language, that between 2004 and 2008 only new employees signed agreements with the necessary revocation language, and that it was only after 2008 that all employees signed agreements with the revocation language.

“[U]nder these circumstances the percentage of the subset of employees who signed meal agreements lacking the required revocation language during a given time period is probative as to the percentage of the class that signed meal agreements lacking the required revocation language,” the court said. “Thus, unlike Wal-Mart, where the statistical sampling was the only evidence establishing liability, here, the results of the statistical sampling (calculating an average percentage of meal agreements lacking revocation language for each year between 2001-2008) served as a manageability tool—an alternative to burdensome production.”

Further, the trial court muddled the holding of Wal-Mart with the question of predominance in a class certification motion. When it originally certified the class, the trial court found that the security guards had presented sufficient evidence that Wackenhut had policies and practices that violated wage and hour laws, the court said. “Because plaintiffs met their burden of establishing a common policy, whether an individual was permitted to take a valid meal or rest break on any given day is a question of damages,” the panel wrote.

The nature of Title VII liability also distinguished Wal-Mart from the case at hand, the court said. Individualized inquiries were necessary in that case because of the burden-shifting framework of employment discrimination actions under the statute while the wage order under which the security guards filed suit does not feature an individualized burden-shifting mechanism. “If plaintiffs have made a showing that Wackenhut had a policy or practice that violated California wage and hour laws, any defense asserted by Wackenhut can also be presented on a classwide basis,” the court said.

What about an affirmative defense based on “the nature of the work”? The employer contended that this exception to the requirement for meal breaks could not be adjudicated on a classwide basis because it required an analysis of each individual client, worksite, job post, and shift. But the appellate panel found that Wackenhut made it a class issue by treating the meal break on a classwide basis. Specifically, the employer had a policy of letting its clients decide whether or not security guards would be permitted to be relieved of all duty for meal breaks.

“[S]ince the employer did not analyze whether the nature of the work exception applies before requiring employees to take on-duty meal periods, it cannot rely on the nature of the work defense to bar class certification,” the court wrote. “Individual issues … do not predominate because Wackenhut has treated the nature of the work exception on a classwide basis.”

To read the opinion in Lubin v. The Wackenhut Corporation, click here.

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No Class Certification Where Employer Lacked Uniform Policy

Why it matters

An employer’s lack of a uniform policy necessitated the reversal of class certification, a California federal court judge recently ruled, refusing to reconsider his decision to decertify the class. Several AutoZone employees filed suit in 2010, accusing their employer of failing to provide them with rest breaks. Several other actions were consolidated into a multi-district litigation and a class was certified in 2012. As discovery went on, AutoZone moved to decertify the class. The court granted the motion in August, finding that written records keeping track of workers’ breaks were not kept and that a lawful policy had been in place for several years of the class period. The plaintiffs asked the judge to reconsider the motion, suggesting that, instead of decertifying the class, he redefine it. But the court affirmed the decertification ruling. “AutoZone’s policy was, for a significant portion of the class period, lawful on its face and, ‘[a]s a result, the bulk of the issues that are truly in dispute … are inherently individualized,’ ” the judge concluded.

Detailed discussion

Multiple cases were filed in California federal courts against AutoZone, alleging the company failed to provide legally mandated rest breaks for its workers. After a multi-district litigation (MDL) was established, U.S. District Court Judge Charles R. Breyer certified a class in December 2012, defined as: “All non-exempt or hourly paid employees who have been employed at Defendant’s retail stores in the State of California at any time on or after July 29, 2005 until the date of certification.”

However, as discovery went on, AutoZone moved to decertify the class based on the evidence that had come to light since certification. Judge Breyer granted the motion in August, writing that “Plaintiffs have failed to demonstrate predominance or manageability/superiority.” The plaintiffs then moved for the court to reconsider the motion, arguing the decertification ruling was error or, in the alternative, that the court should have redefined the class.

But the court disagreed.

At the class certification stage, the court had accepted the plaintiffs’ representation that throughout the relevant time period, the employer had a written rest break policy applicable to all AutoZone stores. Based on this, the court found predominance. But the evidence told a different story, the court said.

“The evidence demonstrates that at the beginning of the class period, AutoZone’s written policy was that ‘[rest] breaks are scheduled in accordance with California law,’ and AutoZone posted the relevant Wage Order in each store,” Judge Breyer wrote. “The unlawful-as-written language that Plaintiffs had earlier represented as AutoZone’s sole policy throughout the class period was not in place until 2008.”

This left the plaintiffs without a uniform policy warranting certification, the court said, rejecting their contention that just because the 2008 policy was unlawful, the earlier policy similarly violated labor law.

“[T]he evidence does not suggest that, despite different written policies, AutoZone had a uniform practice of denying rest breaks,” the court wrote. “Rather, the existence of the conflicting policies during the class period, some of which appear facially lawful and others of which appear facially unlawful, which existed over different time periods, and which were applied differently to various employees, negates Plaintiffs’ claims of uniformity. The evidence suggests that many class members received proper breaks, and that when they did not, it was due to a variety of reasons, not all of them unlawful.”

Because there was no single uniform policy in place from 2005 to 2012—nor a consistent practice of denying rest breaks during that time—the court did not err in concluding that the plaintiffs failed to demonstrate predominance, Judge Breyer said.

He also rejected the plaintiffs’ proposal to redefine the class, limiting it to the period in which the 2008 policy was in effect, holding that individual issues would predominate.

“Common issues do not predominate where a policy was applied differently to different class members: some class members testified that they did not receive breaks, others testified that they did take breaks, some stated that they told subordinates to take a break every two hours, others explained that whether they received a break depended on the manager, position held, hours worked and/or staffing at that location,” the court said. “It was not clear error to decline to redefine the class where there was significant variability among class members.”

In addition to failing to satisfy the predominance requirement, the plaintiffs did not demonstrate that class certification would render the case more manageable. Despite their reassurances that rest break records existed, the plaintiffs were unable to find them. “The Court expected that the records would help Plaintiffs establish liability as to each class member, so that Plaintiffs would not need to rely on employees’ recollections from years past,” Judge Breyer explained. “That Plaintiffs could no longer point to either a uniform policy or a record of when rest breaks were actually taken struck the Court as problematic.”

To read the order in In re: AutoZone, Inc. Wage and Hour Employment Practices Litigation, click here.

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NLRB Asks Supreme Court—Again—to Speak on Arbitration

Why it matters

Not for the first time, the National Labor Relations Board (NLRB) has asked the U.S. Supreme Court to weigh in on whether the National Labor Relations Act (NLRA) bars arbitration agreements that prohibit employees from pursuing employment-related claims on a class or collective basis in any forum. The most recent writ of certiorari comes from a case out of the Fifth Circuit Court of Appeals. The NLRB argued that a national fitness chain’s employment agreements violated employees’ Section 7 right to engage in protected, concerted activity by requiring individual arbitration and foreclosing class or collective actions of any kind. An administrative law judge sided with the NLRB, following the D.R. Horton and Murphy Oil line of cases, but the Fifth Circuit reversed, siding with the employer. The Board’s petition to the Justices emphasized that the federal appellate panels are increasingly divided on the issue, with the Fifth Circuit on one side and the Seventh and Ninth Circuits agreeing with the Board. Given the split, it seems likely that the Court will grant cert on one of the cases sooner or later.

Detailed discussion

In 2011, the National Labor Relations Board (NLRB) issued a complaint alleging that 24 Hour Fitness violated the National Labor Relations Act (NLRA) by requiring employees to agree to resolve all employment-related disputes through individual arbitration. This waiver of class and collective actions ran contrary to employees’ Section 7 right to engage in protected, concerted activity, the NLRB alleged.

An administrative law judge (ALJ) agreed, leaning on the NLRB’s decision in D.R. Horton for support. That decision—followed by Murphy Oil—established the Board’s position that any employment agreement requiring the waiver of class or collective actions violated the NLRA.

The national fitness chain appealed and the NLRB affirmed. Even the use of an opt-out provision in 24 Hour Fitness’ employment agreement did not save it, the majority of the Board panel wrote.

The Fifth Circuit—which had already rejected the NLRB’s position in both D.R. Horton and Murphy Oil—granted the employer’s motion to reverse in a single-sentence order.

Undeterred, the Board filed a petition for a writ of certiorari to the U.S. Supreme Court, requesting yet again that the Justices take a stance on the issue. Specifically, the NLRB posed the question: “Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. 158(a)(1), because they limit the employees’ right under the National Labor Relations Act to engage in ‘concerted activities’ in pursuit of their ‘mutual aid or protection,’ 29 U.S.C. 157, and are therefore unenforceable under the savings clause of the Federal Arbitration Act, 9 U.S.C. 2.”

The NLRB had already sought review from the Fifth Circuit’s Murphy Oil decision as well as a similar Second Circuit case while employers asked the high court to consider cases from the Seventh and Ninth Circuits, where the federal appellate panels embraced the Board’s position.

“There is a clear conflict in the courts of appeal regarding the validity, in light of the NLRA, of arbitration agreements that would preclude employees from pursuing class or collective actions that assert employment-related claims,” the Board wrote. Noting that it has already filed prior writs, the NLRB suggested that the Court hold the petition in 24 Hour Fitness pending the disposition of the other four petitions.

To read the NLRB’s writ of certiorari in NLRB v. 24 Hour Fitness, click here.

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