What’s the Alternative? 2015-08-04T10:11:14-06:00

Posted on August 4, 2015

FEMA Employees sued when FEMA closed its Puerto Rico-based call center. The call center was originally a “temporary” center set up to address calls from Spanish-speaking victims of a hurricane. The leased facility was inadequate for a permanent call center; working there posed employee health and safety risks. FEMA let the lease expire and discharged the employees. Abril-Rivera et al. v. Johnson, No. 14-1316 (1st Cir. July 30, 2015).

The employees alleged that targeting the Puerto Rico-based center for closure had an adverse impact on employees living in Puerto Rico. Yes, the court noted that “living in Puerto Rico” is not a protected status, but the court relied more on the Supreme Court’s recent ruling in a Fair Housing Act case. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., No. 13-1371. (U.S. June 25, 2015). The Supreme Court instructed the courts to pay special attention to legitimate business needs in disparate impact cases. The court here noted that FEMA had legitimate business reasons to close the call center –the health and safety of the workers – and the plaintiffs offered no evidence of an alternative that would have had less disparate impact and would have served the legitimate needs. FEMA could have done a nation-wide layoff of poor performers instead of closing the Puerto Rico call center, but how would that have solved the safety problems at the call center?

It pains us to admit it, but John Doran was right. He told us the Supreme Court’s recent FHA decision would have Title VII implications. The case supports the circuit court’s decision; plaintiffs must show how employers could accomplish their legitimate business needs with less disparate impact.

IBM Avoids Liability for “Inartful” HR IM 2013-11-07T23:24:34-07:00

Posted on November 7, 2013

By Bill Wright

HR professionals slip into jargon and euphemisms, like everyone else. Also, like everyone else, HR professionals think their instant messages are too ephemeral to become evidence in a discrimination suit. Not so. The courts recently had to address whether an exchange of instant messages between HR professionals about a reduction in force provided direct evidence that the employer discharged an employee because of his age. The IM exchange referred to the employee’s “shelf life.” The HR professionals were actually talking “inartfully” about the employee’s remaining work, and they ultimately decided NOT to include the employee in the reduction in force. Months later the employer discharged the employee for performance-related reasons. Still the IMs found their way into the litigation, as evidence for the employee, and the employer had to fight the claim all the way to the court of appeals. Watch your thumbs! Roberts v. IBM, No. 12-5169 (10th Cir. November 5, 2013).

WARNing: Yard and Annex are the same worksite 2013-08-29T19:58:27-06:00

Posted on August 29, 2013

By Bill Wright

When planning a reduction in force, employers always have to consider the Worker Adjustment and Retraining Notification Act (“the WARN Act”). To determine whether you have to give WARN notice of a mass layoff, you have to determine whether the workers affected are at one or more sites of employment. Recently, a court identified a “truly unusual organizational situation” and determined that two separate facilities were part of a “single site of employment.” Davis at al. v. Signal Int’l Texas GP, LLC et al., No. 12-41262 (August 28, 2013). Contrary to the court’s characterization, the situation was not at all unusual. The employer had a manufacturing facility, called “the Yard,” and, a mile away, it had an administration building, called “the Annex.” Administrative employees went back and forth between the Yard and the Annex, some had offices at the Yard and others at the Annex.

Be WARNed, if you share employees back and forth between two buildings, separated by a mile, layoffs from either facility will affect the same community, and if those collective numbers meet the WARN threshold you should give the required notice.

Succession Planning at Its Worst 2013-08-13T17:52:54-06:00

Posted on August 13, 2013

By Karla Sanchez

Citing an “informal succession plan” doesn’t legitimize age-based layoff decisions. In Sharp v. Aker Plant Services Group, Inc., No. 11-5419 (6th Cir. Aug. 9, 2013), the employer selected employees for layoff in response to a business downturn. When the plaintiff asked the manager why he had been selected for layoff instead of a younger employee, the manager explained that the younger employee was being trained as a replacement for another older employee, pursuant to the company’s unwritten succession plan. The manager expected that the plaintiff would retire in about 15 years, about the same time as other employees of similar age, and the company would need people who would work ten-plus years more. The Sixth Circuit ruled the manager’s statements to be sufficient evidence to take the claim to trial.

Businesses may plan for the future, but “keep younger employees” is not a succession plan; it’s a lawyer-employment plan.

Posted on August 4, 2015

Posted on November 7, 2013

Posted on August 29, 2013

Posted on August 13, 2013

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