Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

Employment attorney Jonathan Hyman writes an interesting blog post this week concerning statistics:  Why Statistics are So Important in Reduction in Force Cases.  

Attorney Hyman states that "the Older Workers Benefit Protection Act requires all releases and waivers of federal age discrimination claims provided as part of a severance program offered to a group of employees (such as in a reduction in force) to include a written disclosure of the job titles and ages of all eligible individuals selected for the program and all not selected for the the program."  

The EEOC, in its guidance on Understanding Waivers of Discrimination Claims in Employee Severance Agreements, provides the following example of what this disclosure should look like:

As attorney Hyman correctly notes, when "the lone 63-year-old employee in Job Title 1 . . . [decides] whether to sign the waiver or pursue an age claim, the only fact he and his lawyer will have to go on is that within his job grouping, 7 out of the 9 oldest employees were RIFed, including the oldest employee."

Thus, the "raw statistics" will likely be the critical piece of information on which that employee will base his/her decision on whether to sue or accept the severance.    

However, raw statistics alone are insufficient to make a case of disparate treatment or disparate impact.  According to the federal Uniform Guidelines on Employee Selection Procedures (1978), adverse impact occurs when the selection rate for a protected class is less than 80% of the rate for the class with the highest selection rate, which is commonly known as the 80% rule or the four-fifths rule.   

The 80% rule is a fairly rudimentary calculation, and is not the final word on whether unlawful discrimination occurred.  If the 80% rule has been violated, then the employer should use a more statistically significant methodology to determine if there really is a statistically significant adverse impact on the protected group and if the sample size is statistically significant.  A workplace investigator may need to consult a statistician if this issue arises.  

In general, however, when the 80% rule is violated, employers have four alternatives:

1. Abandon the procedure;
2. Modify the procedure to eliminate adverse impact;
3. Validate the job-relatedness of the selection procedure (e.g., validation studies, detailed records, and fact finding about alternatives with less adverse impact);
4. Justify the procedure as a business necessity.

Thus, a workplace investigator investigating an "adverse impact" claim should conduct some fact finding concerning alternatives 3 and 4--  if the 80% rule is violated.  If the 80% rule is NOT violated, the query may stop there.  However, an investigator could still decide to investigate alternatives 3 and 4 at his/her discretion.

• Email This
• Print
• Comments
• Trackbacks

Over the years, the National Labor Relations Board ("NLRB") has vacillated on the issue of whether "Weingarten rights" apply to nonunion employees.  Weingarten rights derive from the 1975 US Supreme Court case NLRB v. Weingarten, where the Court announced that unionized employees have the "right" to have a union representative present during certain investigatory interviews, thus the name "Weingarten rights".  

In July 2000, the NLRB extended the rights to nonunion employees so any employee under investigation or subject to possible discipline was now permitted to bring along a "co-worker" into the interview or meeting.  Thus, even in nonunionized settings, employers had to stop questioning until a representative arrived whenever an employee asked for one.

However, in 2004, the NLRB reversed itself in IBM Corporation [PDF] holding (by a 3-2 vote) that Weingarten rights apply only to unionized employees, and stated, "the right of an employee to a coworker’s presence in the absence of a union is outweighed by an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations.”  Thus, since 2004, nonunionized employers have not had to permit co-worker representation during investigative interviews.    

But wait--we may not be done yet!  

An interesting blog caught my eye today at the Ohio Employer's Law Blog where attorney/blogger Jonathan T. Hyman writes,

"[The IBM case] was a tight 3-2 decision of a Bush-appointed NLRB.  Even the IBM majority recognized that one could reasonably interpret the National Labor Relations Act to reach the opposite conclusion.  Because President Obama has already appointed a new Chairperson, and will fill three other vacancies on the NLRB, there is a good chance this rule will change if the issue makes its way back to D.C. in the next three years."  [Emphasis added.]

President Obama appointed Wilma Liebman (D) in January 2009 to Chair the NLRB.  According to the BNA, Daily Labor Report, Liebman worked as an attorney for the Bricklayers and Allied Craftsmen from 1990 to 1993 and for the International Brotherhood of Teamsters from 1980 to 1989. An AFL-CIO Blog post states:  

"As an NLRB member over the past eight years, Liebman has challenged the Bush administration’s war on workers. The board’s Republican majority made it harder to form unions through majority sign-up, limited the ability of illegally fired workers to recover back pay and allowed employers to discriminate against union supporters in the hiring process."

AFL-CIO President John Sweeney says Obama made the right choice:

"America’s working men and women will finally have the fair and committed leader they deserve with Wilma Liebman as chair of the National Labor Relations Board. What a refreshing change it will be to have a labor board that aims to safeguard rather than blockade workers’ rights. Liebman will work to help the NLRB serve one of its key missions–to undergird all workers’ right to collective bargaining as a cornerstone of our economy and democracy."

For nearly two years, the normally five-member NLRB has operated with only two members. The vacancies, caused when former President Bush’s nominations to fill vacancies on the Board languished in Congress, forced the Board to take an unusual step under the advice of the Board’s general counsel. The Board declared that two members create a quorum, enabling the two members to continue issuing opinions while waiting for the remaining slots to be filled.   Since then the 2-member Board has issued more than 400 opinions.  

President Obama has sent three nominations to the Senate to fill the empty seats, and in October 2009, the Senate HELP committee advanced the nominees for full Senate consideration. So, as attorney Hyman notes, with President Obama appointing 4 of the 5 NLRB members, there is a good chance the extension of Weingarten rights to nonunionized employers may change again if the issue makes its way back to the NLRB again in the next three years.

Workplace investigators need to be mindful of the Weingarten case, and related NLRB rulings, to avoid the potential violation of an employee's rights by the employer.

• Email This
• Print
• Comments (1)
• Trackbacks