Shawe Rosenthal - Management's Workplace Lawyers

HIGHLIGHTS FOR THE MONTH OF MARCH 2004

FEDERAL AGENCIES ATTEMPT TO CLARIFY DEFINITION OF “APPLICANT” IN THE INTERNET AGE

This month, the EEOC issued for public comment proposed regulations that attempt to clarify what it means to be an “applicant” in the new age of electronic recruitment. This is a matter of some importance as “applicant” status triggers many employer obligations, including the duty to maintain applicant records.

The Problem: Employers are required by a number of laws to keep records on “applicants for employment” to show the demographics (race, sex, and ethnic membership) of their applicant pool. The definition of “applicant” has long been a source of debate between employers and agencies such as the EEOC and OFCCP, with the agencies applying a broad definition (and therefore more burdensome recordkeeping obligations) and employers insisting that the definition should be more narrowly drawn. The sharp rise in the use of electronic recruitment (through such means as internet job postings by companies, online job boards, and resume databases) heightened the importance of this debate, as companies struggled to determine how many of the thousands of resumes received electronically would have to be retained. If, as many agencies demanded, an applicant should be “a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities,” the retention obligations would be onerous. Moreover, it would mean that employers would be subject to claims from potentially very large numbers of individuals.

The proposed regulations published by the EEOC on March 4, 2004, acknowledge the problem faced by employers. Online job seeking is more casual, as individuals can search the net for job opportunities without the “transaction costs” that are associated with traditional job searches (e.g. reading the newspaper, driving to companies to look at job posting boards, sending or dropping off copies of resumes, etc.).

The Proposed Solution: The proposed regulations provide that an individual will be considered an applicant in the context of internet and related data processing technologies if (1) the employer has acted to fill a position; (2) the individual has followed the employer’s standard procedures for submitting resumes; and (3) the individual has indicated an interest in the position. The proposed regulations provide examples in order to define these terms.

(1) Acting to fill a position: As an example, assume an employer decides to fill a position in the New York area and looks at an online resume database. The employer identifies 200 resumes of people stating their availability to work in this geographic area. One hundred then respond affirmatively to the employer’s e-mail identifying the opening. Even if the employer only interviews some of those who favorably respond, all are considered “applicants” since the employer, in acting to fill the position, sought their interest and 100 responded.

(2) Followed the Employer’s Procedures: An employer can set up requirements, such as application deadlines, application methods (such as going to an electronic kiosk to apply or completing an online profile) and the like. Under the proposed definition, any individual who fails to follow all the employer’s procedures is not an “applicant” for whom records must be kept.

(3) Indicated an Interest: In order for a person to indicate an interest in a job for purposes of applicant status, there must be purposeful action by both employer and job seeker in connection with an opening. The act of posting a resume in a resume bank or personal web site is likened to the individual advertising an interest in jobs, rather than an interest in a particular job. The person does not become an applicant for all employers that search the database. If, however, an employer contacts an individual about an opening after finding her resume and the individual indicates an interest, she will be an applicant if she follows the employer’s other procedures for application. As another example, if a person responds to an employer solicitation by indicating an interest in a broad range of jobs (e.g. “marketing opportunities”) the person is not indicating an interest in particular jobs and need not be treated as an applicant for all marketing openings. On the other hand, if the job seeker completes an online application for particular marketing jobs, she will have indicated an interest within the meaning of the regulations.

Continuing Questions: Employers were hoping that the regulations would address what has been a longstanding bone of contention between the agencies and the employment community. Employers have urged that “applicants” should be limited to those who meet the minimum qualifications stated by the employer and not anyone who simply indicates an interest in the job. Employers felt this change – which should apply to both paper and online applications – was long overdue and was coming. The proposed regulations are silent on this point.

Anyone who wishes to submit comments on the proposed regulations can do so by sending them to Frances M. Hart, Office of the Executive Secretariat, EEOC, 1801 L Street, NW, Washington, D.C. 20507 (facsimile: 202-663-41114). Ironically, there is not a mechanism for submitting comments online.

TRANSFER TO A LESS CHALLENGING JOB IS NOT AN “ADVERSE ACTION” FOR PURPOSES OF A RETALIATION CLAIM

On March 16, 2004, the United States Court of Appeals for the Fourth Circuit (which covers Maryland, Virginia, West Virginia, North and South Carolina) upheld a lower court ruling that an employee who had filed a number of discrimination charges against her employer and was transferred to a less challenging job in the midst of them could not state a retaliation claim. Lack of job satisfaction, the court ruled, was not an “adverse action” within the meaning of the law.

Facts: In Mackey v. Shalala, Plaintiff was informed by her boss that she was no longer going to report to him but would report to another employee, Bain, a man who had been employed in a temporary capacity and was now being made permanent. Plaintiff later learned that Bain also would be assuming many of her duties, including serving as a liaison to certain committees and as the chairperson of an advisory board. Plaintiff thought this action was taken for gender-related reasons, and filed two successive discrimination charges. Shortly thereafter, she was reassigned to a job which she viewed as less satisfying. Plaintiff then filed a retaliation charge. In her subsequent lawsuit, the trial court ruled that she failed to prove that her transfer was in retaliation for her charge filing activity.

The Court’s Ruling: The Fourth Circuit affirmed for two reasons. First, Plaintiff suffered no change in pay or benefits as a result of her transfer. Decreased job satisfaction, the court found, was not the sort of “adverse action” which would support a retaliation claim. Second, the court found that the plaintiff did not demonstrate a causal connection between her charge-filing and her transfer, which was yet another legal deficiency in her claim. Although the transfer came on the heels of plaintiff’s second discrimination charge, the employer presented testimony and contemporaneous written evidence supporting the transfer as part of a larger reorganization and the plaintiff had no evidence that the action was pretextual.

Lessons Learned: Employees who continue to work while they pursue legal actions against their employers present major challenges. While employers must evaluate the actions taken with such employees on an ongoing basis to guard against unlawful retaliation, this case shows that an employer is not hamstrung. Job changes that do not lead to diminished pay, benefits, or materially different hours of work will generally be immune from challenge. Additionally, even material changes can be made when they are legitimate and based on business needs. Employers should, however, be prepared to prove the necessity for changes by keeping documentation.

EMPLOYEE’S STATED DESIRE TO “STAY HOME WITH HIS WIFE UNTIL SHE GAVE BIRTH” DID NOT TRIGGER FMLA RIGHTS

On March 8, 2004, a federal appellate court ruled that an employee who advised his employer that he wanted to stay home with his wife until she gave birth did not put the employer on notice that he wished to do so for an FMLA protected reason. The employer, therefore, did not violate the law by holding him accountable for his absences and firing him when he exceeded the number permitted by the Company.

Facts of the Case: In Aubuchon v. Knauf Fiberglass, GMGH, the plaintiff, whose wife was pregnant, orally told his employer he would be taking Family and Medical Leave Act (FMLA) starting on August 21. Plaintiff’s wife was past her delivery date and the plaintiff said he wanted to stay home with her until she gave birth. Thereafter, he stopped coming to work. On September 1, the day his child was born, the plaintiff submitted FMLA paperwork. The paperwork did not state that his wife had any serious health condition or pregnancy related complications prior to giving birth. Plaintiff, now over the unexcused absence limit, was denied FMLA leave and fired. He then submitted a note from his wife’s doctor stating that she had pregnancy related complications. When the company refused to reverse the termination, plaintiff sued under FMLA. His case was dismissed on summary judgment.

The Court’s Ruling: The appellate court affirmed. The court noted that pregnancy itself is not an FMLA-covered condition, and found that plaintiff failed to put his employer on notice that his wife had complications that would be grounds for the leave. The plaintiff could not cure the lack of notice after the fact. “Employees should not be encouraged to mousetrap their employers by requesting FMLA leave on patently insufficient grounds and then after the leave is denied obtaining a doctor’s note that indicates that sufficient grounds existed, though they were never communicated to the employer.” The court also rejected the FMLA regulations to the extent they suggested any request for FMLA leave triggers an employer duty to determine if the leave is covered. The court ruled that unless an employer already has information about an FMLA-covered ground for leave, the employee must state an FMLA-covered reason.

Lessons Learned: The FMLA places burdens on employers – to grant leave to eligible employees and operate the business while holding open a job for up to 12 weeks. The law also, however, places reciprocal burdens on employees, the chief of which is to provide notice of the need for leave so that the employer can make arrangements for the absence. While employers must act on what they are told – orally and by way of health provider certifications – they have a right to deny leave when the information provided fails, on its face, to support the need.

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