Employers routinely provide position statements to the Equal Employment Opportunity Commission (EEOC) investigators in defense of discrimination charges.  These position statements cover the employer's (respondent’s) version of the facts and why the employer believes the charge should be dismissed.  The EEOC recently announced that it will begin providing for the release of such employer position statements to charging parties or their representatives upon request during the investigation of a charge of discrimination.  These procedures will apply to all EEOC requests for position statements made to employers on or after January 1, 2016. 


An employer generally has thirty (30) days to submit a position statement and attachments to the EEOC during an investigation.  If the employer relies on confidential information in its position statement, the EEOC states the employer should provide such information in separately labeled attachments.  After the EEOC reviews the employer's position statement and attachments, the EEOC staff may redact confidential information as necessary prior to releasing the information to charging parties or their representatives.  Employers should put confidential information in separate attachments to the position statement labeled "Sensitive Medical Information," "Confidential Commercial Information," "Confidential Financial Information" or "Trade Secret Information" to best protect confidentiality during EEOC's review of the information.  In addition, employers should put certain additional information into separate attachments including "Non-Relevant Personally Identifiable Information of Witnesses, Comparators or Third Parties, for example, Social Security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc."  The EEOC will then provide the position statement and non-confidential attachment to charging parties and provide them an opportunity to respond within twenty (20) days.  The charging parties' response will not be provided to the employer during the investigation. 

Editor's Note:  The EEOC's new procedures seem unfair, as a charging party will receive a copy of the employer's position statement, but the employer will not receive a copy of the charging parties' response to the employer's position statement.  The EEOC explains that while the charging parties' response will not be provided during the investigation to the employer, the EEOC is releasing the first formal document received from the charging party, the charge, and the first formal document received from the employer, the position statement.  The EEOC does state that if during the course of the investigation the EEOC determines that it needs additional information from the employer, including information to address the charging parties' rebuttal to the position statement, the investigator will contact the employer. 

The bottom line is that in disclosing the employer's position statements to charging parties during the investigation, the charging parties will have a better chance of prevailing in the investigation by refuting the statements and the like.  In the past, the EEOC did not release file materials except when formal court litigation was in progress.

Having declared a minimum wage hike to $10.10 per hour for Federal contractor employees by Executive Order in 2014, President Barack Obama followed up in September 2015 with another Executive Order requiring those same Federal contractors to establish paid sick leave programs for their employees.  On February 25, 2016, the U.S. Department of Labor published proposed Notice of Proposed Rulemaking (NPRM) detailing regulations to implement that policy.

Provisions:  The Executive Order requires most employers that contract with the Federal Government to provide their employees with up to seven (7) days of paid sick leave annually, including for family care and absences resulting from domestic violence, sexual assault, and stalking. The program would affect approximately 437,000 workers who currently do not have paid sick leave.

Covered employers would include Federal contractors with (1) procurement contracts for construction covered by the Davis-Bacon Act (DBA); (2) service contracts covered by the McNamara-O’Hara Service Contract Act (SCA); (3) concessions contracts, including any concessions contracts excluded from the SCA by the Department’s regulations at 29 CFR 4.133(b); and (4) contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public. Excluded are (1) grants; (2) contracts and agreements with and grants to Indian Tribes; (3) any procurement contracts for construction that are not subject to the DBA (i.e., procurement contracts for construction under $2,000); (4) any contracts for services, except for those otherwise expressly covered by the proposed rule, that are exempted from coverage under the SCA; and (5) contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the Federal Government.  The term "contract" broadly includes all contracts and any subcontracts of any tier thereunder.

All employees of covered contractors would be included, even employees who qualify for an exemption from the FLSA minimum wage and overtime provisions. There is a narrow exemption for employees who perform duties necessary to the performance of a covered contract but who are not directly engaged in performing the specific work called for by the contract and who spend less than 20 percent of their hours worked in a particular workweek performing work in connection with such contracts.

Under the proposal, employees would accrue not less than one hour of paid sick leave for every 30 hours worked on or in connection with a covered contract, to be calculated at the end of each workweek. Alternatively, a contractor could provide an employee with at least 56 hours of paid sick leave at the beginning of each accrual year.  Employers would have to inform employees in writing, at least monthly, of the amount of paid sick leave they have accrued.  The NPRM sets out in great detail requirements for carryover, caps, and reinstatement rights.  Acceptable reasons for employees to use paid sick leave include physical or mental illness, injury or medical condition, and to care for family members, which have a broad definition including "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship."

Just about the only good news for a covered contractor under this program is that they will not be required to pay employees for accrued, unused paid sick leave at the time of separation from employment.  A mechanism is set up for employees to file complaints with USDOL's Wage and Hour Division if they feel they have been unfairly denied leave.

Comments:  As with the Federal contractor minimum wage hike and affirmative action under EO 11246, this is another move to impose policy goals on a sector of the economy that is directly subject to Executive control.  It will increase the administrative burden on covered employers, but at the end of the day, their bids will reflect this increased cost so the only person really footing the bill for this new benefit will be the American taxpayer.

The NPRM is available at www.regulations.gov and at the WHD Website. The NPRM invites interested parties to submit written comments on the proposed rule electronically at www.regulations.gov, or by mail. The docket ID number is 1235-AA13. Only comments received during the comment period identified in the version of the NPRM published in the Federal Register will be considered part of the rulemaking record.

Many employers depend on employees being able to get to work from remote locations.  To improve the process, some employers encourage employees to set up car pools or van pools, sometimes paying the driver for his services.  Complex issues arise if there is a traffic accident and injury going to and from work, raising the question of employer liability. 

A recent state court case in Texas addresses these issues in Painter v. Amerimex Drilling, 40 IER Cases 1516 (Texas Court of Appeals, Nov. 3, 2015).  The employer paid each driver a bonus of $50 a day to drive their crew to and from the work site.  There was no requirement that the employees ride with the driver, and on one occasion there was a wreck and the driver and the passengers were killed or seriously injured.  The driver sought workers' compensation benefits, necessarily contending that he was injured in the course and scope of employment at the time of the accident.  For reasons addressed later, the employer also urged that the driver was in the course and scope of his employment.  The workers' compensation division in Texas found that the driver's injury was compensable under workers' compensation because he was paid to transport the employees to and from the work site and was directly furthering the business interests of the employer.

None of the passengers, however, filed claims for workers' compensation benefits.  The employer actually attempted to initiate benefit proceedings on their behalf, contending that when an employee driver of the vehicle is in the course and scope of employment, so too would any employee passenger.  The Texas Workers' Compensation Division found the employer lacked standing to initiate benefit proceedings on the passengers' behalf, and even if it did, the employee passengers did not sustain compensable injuries. 

Two of the passengers were killed in the crash, and a third seriously injured.  The three passengers sued the driver, the employer and various other entities, for negligently causing the accident of running into the back of another vehicle.  The employer contended that all of the employees were in the course and scope of employment and their exclusive remedy was under the Texas worker's compensation laws, otherwise barring claims against the employer.  Alternatively, they claimed in defense that none of the employees, including the driver, were in the course and scope of employment and thus it owed no duty to them and there was no liability.

The court noted there were limitations to employer liability, as the employer may only be held liable for the tortious acts of an employee committed within the course and scope of employment.  An employee traveling to and from work is generally not in the course and scope of his employment, but instead has risks attendant to transportation which are not unique to the workplace, but are shared by the motoring public as a whole.

The court noted that the workers' compensation laws represent a statutorily imposed compromise between the worker and employer whereby workers forfeit their right to sue the employer in exchange for certain, but more limited benefits.  It is liberally construed in favor of the employee.  Therefore, the statutory definition of course and scope of employment found in the workers' compensation laws may lead to different outcomes than those based upon vicarious liability tort laws on one party for the conduct of another, a concept which is generally a pure policy question of allocation of risk.  Regarding the latter issue, the court found that a plaintiff seeking to impose vicarious liability on an employer for the acts of a traveling employee needs to show not only that the transportation originated and furthered the employer's business, but also that the employer controlled in some way the transportation as to the details of the work (the drive) through such means as directing the route.  The court found that if the employer was liable for the driver's conduct while car pooling simply because it passed along payments for that car pooling, or even having encouraged it, the employer would have every incentive to end that practice.  Generally, the employer owes no duty for the actions of its off-duty employees.  The only exception is where the employer exercises control over the off-duty employee.  Therefore, the court found that the employer would need to retain the right to exercise some control over how the driver transported his crew, as a predicate to shifting the risk of any accident to it.

The court ruled for the employer on the basis that there was no evidence that the employer had or exercised any control over the manner of transportation - the type of vehicle used, the qualifications of the driver, the number of passengers, or any other issues which might implicate the right of control that justifies shifting the risk of loss from one party to another. 

Editor's Note:  This was a close case, and it should also be noted that the laws of each state may vary somewhat in the application of these principles.  The main point of discussing the case is to sensitize the employers to the issue, as many employers encourage car pooling, van pooling, and the like. 

In a recent case, an employee who had worked for J.C. Penney was terminated and brought a workers' compensation claim as well as a claim for violations of the discrimination laws.  Soltis v. J.C. Penney Corp., 128 FEP Cases 804 (C.A. 6, 2015).  After the workers' compensation claim was settled, J.C. Penney moved for summary judgment arguing they were released by the terms of the workers' compensation settlement.  As part of the workers' compensation settlement, the claimant signed a release which provided that the claimant releases J. C. Penney from any and all claims arising out of or in connection with her employment, or termination thereof, including but not limited to the various discrimination laws. 

The Sixth Circuit Court of Appeals found that in the course of settlement of a workers' compensation claim, the parties may agree to also release ancillary claims, such as a discrimination claim.  In determining the enforceability of such releases, basic principles of contract law apply. 

Editor's Note:  Readers should note that some states do not allow a workers' compensation settlement to go beyond settlement of the workers' compensation claims.  Even in such states, however, normally two settlement agreements can be drafted, one settling the workers' compensation claim, and the other settling any and all other potential employment claims.

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