By: Quinn A. Johnson, Esquire qaj@muslaw.com
Douglas M. Hottle, Esquire dmh@muslaw.com
As is evident from recent newspaper headlines, identity theft has become a more common occurrence in the American workplace as thieves have begun to target the treasure trove of information that employers retain in the personnel files of their employees, i.e. social security numbers, names, addresses and bank account numbers. The victims of these workplace identity thefts are seeking restitution and other damages from the companies from which the information was stolen. Employers should be aware of the issues surrounding workplace identity theft, including the methods by which such theft can occur, laws regarding the protection of personal information and what employers can do to both prevent identity theft and mitigate potential liability.
In general, identity theft is defined as the misappropriation and fraudulent use of a person’s personal information. Unfortunately for employers, this kind of information is, of course, exactly the type of information contained in a company’s personnel files. Indeed, many workplace identity thefts occur through the simple photocopying of personnel files or through the downloading of confidential information from a computer. In Bodah v. Lakeville Motor Express, Inc., for example, an employer was sued for faxing a list of employees’ names and social security numbers to different managers within the company.
In light of the possibility of liability, employers should take steps to protect personal employee information and are required to do so under state and federal statutes. In Pennsylvania, recent legislation signed by Governor Rendell on June 29, 2006 prohibits employers, with certain exceptions, from publicly posting social security numbers, printing a social security number on any card, requiring an individual to transmit a social security number over the internet, (unless the transmission is encrypted), requiring an individual to use a social security number to access a website (unless a password or other unique personal identification number is also required), and from printing a social security number on any materials that are mailed to an individual, except where required by federal or state law (such as a W-2 form).
Employers should also be aware of an amendment to the Fair and Accurate Credit and Transactions Act (FACTA), which requires an employer to take reasonable measures to dispose of an employee’s credit report obtained as part of the hiring process. Under the statute, reasonable measures may include implementing policies and procedures that require the destruction of documents containing consumer information, including the destruction of electronic information.
Employers should review their policies and procedures to ensure compliance with the above statutes and to otherwise establish policies prohibiting the distribution of personnel files, limiting access to confidential information and providing for the prompt and proper disposal of confidential information. Although these policies and procedures cannot prevent any and all lawsuits or protect against all identity theft, they are a valuable aid in averting identity theft and limiting an employer’s liability if an identity theft occurs.
For more information on identity theft prevention, contact Quinn A. Johnson at qaj@muslaw.com or 412-456-2524 or Douglas M. Hottle at dmh@muslaw.com or 412-456-2809.
Monday, December 31, 2007
OWBPA Compliance Necessary For Valid Release of Claims
By: Joseph A. Vater, Jr., Esquire jav@muslaw.com
In terminating an employee or a group of employees, employers will often provide a severance or separation package in exchange for a release of claims against the employer. A recent case decided by the United States Court of Appeals for the Tenth Circuit reinforces the importance of complying with the Older Workers Benefit Protection Act (“OWBPA”) in such situations. In Ted Kruchow Ski v. Weyerhaeuser Co., the Tenth Circuit reviewed the validity of a release signed by a group of former employees of the Weyerhaeuser Company and determined that the release of the Age Discrimination in Employment Act claims was invalid because the release failed to comply with a certain requirement of the OWBPA.
The failure to comply involved an inaccurate description of the decisional unit. A decisional unit is defined by the rules interpreting OWBPA as “the portion of the employer’s organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of the waiver.”
The group termination in the Weyerhaeuser case defined the decisional unit as all salaried employees at a facility. Weyerhaeuser later responded to interrogatories by indicating the decisional unit was salaried employees reporting to the facility manager. Fifteen employees at that facility who worked in human resources, information technology and accounting did not report to the facility manager. As a result, approximately ten percent of the employees at the facility were not a part of the actual decisional unit.
The Court recognized that the parties did not dispute that the release was written in a manner to be understood by all affected employees, that it specifically mentioned the Age Discrimination in Employment Act and that the employees waived their rights in exchange for consideration in addition to anything of value to which they were already entitled. Nonetheless, the Court held that the absence of even one of the OWBPA’s requirements invalidated the releases. Because Weyerhaeuser failed to show that the strict statutory requirements were met, the Court determined that the releases executed by the employees were invalid and unenforceable with respect to any age discrimination claim. As a result, the former employees who received benefits as a result of signing the releases were able to continue their lawsuit against the defendant on grounds of age discrimination.
Any employer considering obtaining a release from an individual terminated employee, or obtaining releases from a group of employees involved in a lay off, must ensure that its documents comply fully with OWBPA if the employer wishes to have an enforceable release against age discrimination claims.
For more information regarding the requirements of the Older Workers Benefit Protection Act, contact Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.
In terminating an employee or a group of employees, employers will often provide a severance or separation package in exchange for a release of claims against the employer. A recent case decided by the United States Court of Appeals for the Tenth Circuit reinforces the importance of complying with the Older Workers Benefit Protection Act (“OWBPA”) in such situations. In Ted Kruchow Ski v. Weyerhaeuser Co., the Tenth Circuit reviewed the validity of a release signed by a group of former employees of the Weyerhaeuser Company and determined that the release of the Age Discrimination in Employment Act claims was invalid because the release failed to comply with a certain requirement of the OWBPA.
The failure to comply involved an inaccurate description of the decisional unit. A decisional unit is defined by the rules interpreting OWBPA as “the portion of the employer’s organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of the waiver.”
The group termination in the Weyerhaeuser case defined the decisional unit as all salaried employees at a facility. Weyerhaeuser later responded to interrogatories by indicating the decisional unit was salaried employees reporting to the facility manager. Fifteen employees at that facility who worked in human resources, information technology and accounting did not report to the facility manager. As a result, approximately ten percent of the employees at the facility were not a part of the actual decisional unit.
The Court recognized that the parties did not dispute that the release was written in a manner to be understood by all affected employees, that it specifically mentioned the Age Discrimination in Employment Act and that the employees waived their rights in exchange for consideration in addition to anything of value to which they were already entitled. Nonetheless, the Court held that the absence of even one of the OWBPA’s requirements invalidated the releases. Because Weyerhaeuser failed to show that the strict statutory requirements were met, the Court determined that the releases executed by the employees were invalid and unenforceable with respect to any age discrimination claim. As a result, the former employees who received benefits as a result of signing the releases were able to continue their lawsuit against the defendant on grounds of age discrimination.
Any employer considering obtaining a release from an individual terminated employee, or obtaining releases from a group of employees involved in a lay off, must ensure that its documents comply fully with OWBPA if the employer wishes to have an enforceable release against age discrimination claims.
For more information regarding the requirements of the Older Workers Benefit Protection Act, contact Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.
Recent U.S. Supreme Court And Third Circuit Decisions Expand Employees Rights To Assert Retaliation Claims
By: Elaina Smiley, Esquire es@muslaw.com
Employers must exercise caution in their interactions with employees who have complained about discriminatory or harassing conduct. Employers may now be liable for actions that are not directly related to employment, for actions that are committed outside of the workplace, for actions that may dissuade an employee from filing a charge, and for those actions committed by other employees.
On June 22, 2006, the U.S. Supreme Court issued a decision upholding an expanded interpretation of what constitutes a retaliation claim. Burlington Northern & Santa Fe Railway Co. v. White involved a claim filed by the only female employee working in the maintenance department with her primary duty to operate the forklift. White complained that her immediate supervisor had engaged in sexually harassing conduct. The supervisor was suspended for 10 days and ordered to attend sexual harassment training. On the same day White was told about the supervisor’s discipline, she was removed from forklift duty and assigned to perform track laborer tasks which were far dirtier and tougher than the forklift position. White filed a charge, claiming that the reassignment of duties was unlawful gender discrimination and retaliation for complaining about her supervisor. Subsequently, White was suspended without pay for allegedly being insubordinate. During an internal grievance process, it was determined that White was not insubordinate and she was reinstated to her position and awarded back-pay for the 37 days she was suspended.
Title VII’s anti-retaliation provision forbids employer actions that discriminate against an employee because she/he has opposed a practice that Title VII forbids. Prior to the Supreme Court’s decision, the federal courts were split on whether the action had to be related to employment and how harmful the action must be to constitute retaliation. The Supreme Court found that an employer can retaliate against an employee “by taking actions not directly related to his employment or by causing him harm outside the workplace.” This means that actions taken outside of employment may be sufficient to support a retaliation claim. The Court also held that the plaintiff must show that the action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” An employee must show the action was “materially adverse” and not merely trivial harms such as minor annoyances, petty slights, or lack of good manners.
The Supreme Court found that there was sufficient evidentiary basis to support the jury’s verdict on White’s retaliation claim. The Court stated that the jury was not required to find that the actions were related to the terms or conditions of employment. The Court rejected Burlington’s argument that White’s former and present duties both fell within the same job description and therefore, no retaliation occurred. The Court noted that a good way for employer’s to dissuade employees, such as White, from bringing discrimination charges was to insist that she spend more time performing more arduous duties and less time performing those duties that are easier or preferred. The Court also rejected Burlington’s argument that because she was paid back-pay for her 37 day suspension that she did not have a retaliation claim. The Court noted that White had to live for 37 days without income which constituted a serious hardship.
A recent Third Circuit decision finding that a retaliation claim could be predicated upon a hostile work environment may also expand an employer’s liability for workplace harassment. In Jensen v. Potter, Jensen’s supervisor made unwanted sexual propositions, calling her at work, telling her to come to his house because he wanted to “make love to her all day long.” Jensen reported the incident to her manager. After an investigation, the supervisor was fired. Some of the employees were upset that Jensen caused the supervisor to be fired and began to harass her. One employee made insulting remarks to her and came up behind her and clapped two objects together. Another employee threatened Jenson by driving U-Carts towards her at a rapid pace. Furthermore, her car was vandalized on two occasions in her workplace parking lot. Jensen repeatedly complained about the conduct. This conduct continued for approximately 19 months.
Based on these events, Jensen brought claims for sex discrimination and retaliation. The District Court granted summary judgment on both claims. The Third Circuit reversed, finding that a retaliation claim predicated upon a hostile work environment is cognizable under Title VII. The Court found that if retaliatory harassment is severe or pervasive it could constitute an adverse employment action under Title VII. The court found that the employee’s comments were directly connected to Jensen’s report against her former supervisor and therefore were in retaliation for her making a complaint of sexual harassment. The Court also addressed whether the employer should be liable for the co-worker harassment. In order to establish employer negligence, the plaintiff must show that management knew or should have known about the harassment, but failed to take prompt and remedial action. Because Jensen continually reported the harassment and it took the employer 19 months to address her complaints, the court found that the employer could be liable.
These decisions expand employer liability for actions that are not directly related to employment, for actions that are committed outside of the workplace and for employees’ harassing conduct. Based on the expanded view of retaliation claims, employers must exercise caution when taking any action against an employee who has lodged a complaint. Employers should update their handbooks and policies to ensure that their policies prohibit retaliatory harassment and should educate employees about their duty not to engage in any form of unlawful harassment. Finally, employers should promptly investigate reports of retaliatory (or other illegal) harassment and take prompt and effective action to remedy any such harassment.
For more information about these cases or defending retaliation claims, contact Elaina Smiley at es@muslaw.com or 412-456-2821.
Employers must exercise caution in their interactions with employees who have complained about discriminatory or harassing conduct. Employers may now be liable for actions that are not directly related to employment, for actions that are committed outside of the workplace, for actions that may dissuade an employee from filing a charge, and for those actions committed by other employees.
On June 22, 2006, the U.S. Supreme Court issued a decision upholding an expanded interpretation of what constitutes a retaliation claim. Burlington Northern & Santa Fe Railway Co. v. White involved a claim filed by the only female employee working in the maintenance department with her primary duty to operate the forklift. White complained that her immediate supervisor had engaged in sexually harassing conduct. The supervisor was suspended for 10 days and ordered to attend sexual harassment training. On the same day White was told about the supervisor’s discipline, she was removed from forklift duty and assigned to perform track laborer tasks which were far dirtier and tougher than the forklift position. White filed a charge, claiming that the reassignment of duties was unlawful gender discrimination and retaliation for complaining about her supervisor. Subsequently, White was suspended without pay for allegedly being insubordinate. During an internal grievance process, it was determined that White was not insubordinate and she was reinstated to her position and awarded back-pay for the 37 days she was suspended.
Title VII’s anti-retaliation provision forbids employer actions that discriminate against an employee because she/he has opposed a practice that Title VII forbids. Prior to the Supreme Court’s decision, the federal courts were split on whether the action had to be related to employment and how harmful the action must be to constitute retaliation. The Supreme Court found that an employer can retaliate against an employee “by taking actions not directly related to his employment or by causing him harm outside the workplace.” This means that actions taken outside of employment may be sufficient to support a retaliation claim. The Court also held that the plaintiff must show that the action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” An employee must show the action was “materially adverse” and not merely trivial harms such as minor annoyances, petty slights, or lack of good manners.
The Supreme Court found that there was sufficient evidentiary basis to support the jury’s verdict on White’s retaliation claim. The Court stated that the jury was not required to find that the actions were related to the terms or conditions of employment. The Court rejected Burlington’s argument that White’s former and present duties both fell within the same job description and therefore, no retaliation occurred. The Court noted that a good way for employer’s to dissuade employees, such as White, from bringing discrimination charges was to insist that she spend more time performing more arduous duties and less time performing those duties that are easier or preferred. The Court also rejected Burlington’s argument that because she was paid back-pay for her 37 day suspension that she did not have a retaliation claim. The Court noted that White had to live for 37 days without income which constituted a serious hardship.
A recent Third Circuit decision finding that a retaliation claim could be predicated upon a hostile work environment may also expand an employer’s liability for workplace harassment. In Jensen v. Potter, Jensen’s supervisor made unwanted sexual propositions, calling her at work, telling her to come to his house because he wanted to “make love to her all day long.” Jensen reported the incident to her manager. After an investigation, the supervisor was fired. Some of the employees were upset that Jensen caused the supervisor to be fired and began to harass her. One employee made insulting remarks to her and came up behind her and clapped two objects together. Another employee threatened Jenson by driving U-Carts towards her at a rapid pace. Furthermore, her car was vandalized on two occasions in her workplace parking lot. Jensen repeatedly complained about the conduct. This conduct continued for approximately 19 months.
Based on these events, Jensen brought claims for sex discrimination and retaliation. The District Court granted summary judgment on both claims. The Third Circuit reversed, finding that a retaliation claim predicated upon a hostile work environment is cognizable under Title VII. The Court found that if retaliatory harassment is severe or pervasive it could constitute an adverse employment action under Title VII. The court found that the employee’s comments were directly connected to Jensen’s report against her former supervisor and therefore were in retaliation for her making a complaint of sexual harassment. The Court also addressed whether the employer should be liable for the co-worker harassment. In order to establish employer negligence, the plaintiff must show that management knew or should have known about the harassment, but failed to take prompt and remedial action. Because Jensen continually reported the harassment and it took the employer 19 months to address her complaints, the court found that the employer could be liable.
These decisions expand employer liability for actions that are not directly related to employment, for actions that are committed outside of the workplace and for employees’ harassing conduct. Based on the expanded view of retaliation claims, employers must exercise caution when taking any action against an employee who has lodged a complaint. Employers should update their handbooks and policies to ensure that their policies prohibit retaliatory harassment and should educate employees about their duty not to engage in any form of unlawful harassment. Finally, employers should promptly investigate reports of retaliatory (or other illegal) harassment and take prompt and effective action to remedy any such harassment.
For more information about these cases or defending retaliation claims, contact Elaina Smiley at es@muslaw.com or 412-456-2821.
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