EOIR has hired two new immigration judges for the Memphis court — Matthew W. Kaufman and Richard J. Averwater. Both judges began working in Memphis on June 1 for training. They will take the bench and begin hearing their own dockets the week of July 6.

By Riney Green*

Tennessee is a great place to do business. Many businesses in our state operate as corporations formed under the Tennessee corporate code. Contrary to a recent opinion piece by a Nashville attorney, a 2015 amendment to Tennessee’s corporate code does not make choosing a Tennessee corporation as one’s preferred business entity less attractive nor impose any risk of personal liability on directors of a Tennessee corporation for the unpaid debts of the business.

A June 1 column by lawyer Keith Dennen, unfortunately, presents quite a different and mistaken picture. Mr. Dennen points to the passage in April of a provision amending Tennessee’s corporate code as grounds to reincorporate outside Tennessee, convert to an LLC, or to resign as a corporate director. Mr. Dennen’s article, however, is based on a misunderstanding of the statute and offers costly, unnecessary advice to corporate directors.

Mr. Dennen claims the new law could result in directors being “held personally liable for the debts of the corporation”. This bold interpretation is not supported by the text of the law, the sound judgment of many respected business lawyers and legislators across the country or by the experience in other states that have a similar provision in their corporate codes.

The text of the criticized 2015 amendment to the Tennessee corporate code is quite short:

(a) Directors shall cause a dissolved corporation to discharge or make reasonable provision for the payment of claims and make distributions of assets to shareholders after payment or provision for claims.

(b) Directors of a dissolved corporation that has disposed of claims [in accordance with two provisions related to notice and expiration of claims] shall not be liable for breach of subsection (a) with respect to claims against the dissolved corporation that are barred or satisfied under [the two provisions related to notice and expiration of claims.]

The 2015 amendment is derived verbatim, like many other provisions of the Tennessee corporate code, from the Model Business Corporation Act (“MBCA”), a form of a state corporate code adopted and carefully updated by a committee of many of the most esteemed business lawyers in the country. The MBCA is used as the primary template by over 35 state legislatures to enhance the consistency and predictability of state corporate laws. This same provision has already been added by the legislatures of ten other states to their corporate codes without controversy or known negative impacts on corporate directors.

The new 2015 amendment by its terms only applies to a company that has elected to undergo an official dissolution and liquidation; not, as Mr. Dennen describes, to any Tennessee company in financial difficulty operating outside of the dissolution process. Contrary to Mr. Dennen’s interpretation, the 2015 amendment has no effect on and does not change any laws affecting corporations (or their directors) not engaged in the dissolution process. Unaffected by the 2015 amendment, directors of active Tennessee corporations, just like directors of companies incorporated in other states, will continue to have the benefit of the fundamental shield from personal liability for corporate debts that is established by other Tennessee corporate code provisions and settled case law as they make financial decisions outside of an official dissolution.

And for corporations undergoing an official dissolution, the official MBCA comment to the new 2015 amendment clarifies that it does not impose a new duty at all – the section merely codifies a previously implied duty for directors of a dissolved corporation. In addition, the amendment favorably creates a safe harbor protection against liability for corporate directors, so long as the directors follow the statutory dissolution procedures. Accordingly,rather than impose some new troubling liability risk on directors, the new law has the opposite positive effect. The 2015 amendmentsimply clarifies what a director of an officially dissolving corporation must do to avoid liability – namely, follow the statutory dissolution procedures. There simply is no connection between the new 2015 corporate code amendment and the dire worst-case scenarios for directors described in Mr. Dennen’s article.

The reassuring bottom line good news for current and future directors of Tennessee corporations is that the 2015 amendment to the Tennessee corporate code does not have any of the adverse broad-reaching effects predicted by Mr. Dennen. In fact, the new law’sexpress liability protection for directors of a formally dissolving corporation likely adds a positive reason to incorporate a Tennessee business or serve as a director of a Tennessee corporation.

*Riney Green is Member of the Nashville law firm Bass Berry & Sims. Green chairs the Tennessee Bar Association Business Entity Study Committee.

Concurring in the views expressed are the following other members of the committee:

Van East, Frost Brown Todd

Joan Heminway, Professor of Law at The University of Tennessee

Kris Kemp, h3gm

Donald Moody, Waller

Jackie Prester, Baker Donelson Bearman Caldwell & Berkowitz

Laurel Williams, Burch Porter & Johnson

Allan Ramsaur, Executive Director of the Tennessee Bar Association

By Josh Sudbury and Allison Cotton*

On April 7, 2015, Tennessee Governor Bill Haslam signed legislation providing new employment protections for handgun owners. The new law creates a private right of action for any employee who is terminated solely for storing a firearm or ammunition in the employee's vehicle while parked in the employer's parking lot. The law represents an outgrowth of the controversial "Guns in Trunks" legislation passed by the General Assembly in 2013.

The new law creates a new section in the Tennessee Code that contains Tennessee's statutory cause of action for retaliatory discharge. Tenn. Code. Ann. § 50-1-312, provides that:

no employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearm ammunition in an employer parking area in a manner consistent with § 39-17-1313(a).

Employers should note that the new protection extends to any adverse employment actions such as discipline, demotion, and/or cuts in pay or status. However, the bill does contain some important limitations that employers should note. First, the new law does not protect handgun owners as a class. Rather, to obtain the law's protection, the employee must show that he/she is a handgun-carry permit holder and he/she was properly storing the firearm and/or ammunition as required by law. Second, to prevail on a claim under the new law, an employee must show that his/her exercise of the right to transport and store firearms and ammunition was the sole cause for the adverse employment action. This is a heavy burden. Third, it is important to note that despite its employment protections, the new law specifically reserves the employer's right to prohibit firearms and ammunition from being carried on the employer's premises except when stored in parking areas consistent with the law.

The new law gives aggrieved employees the right to sue for injunctive relief and economic damages as well as for reasonable attorney fees and costs. Actions under the new law must be brought within one year of the adverse employment action and must be filed in the circuit or chancery court of the county where the alleged violation occurred. The McDonnell Douglas burden-shifting analysis will apply to causes of action asserted under the new law.

Employers' Bottom Line:

The new law creates yet another consideration for employers when making tough decisions with regard to discipline and termination of employees. Employers should inform their frontline supervisors and managers of the new law and provide training regarding appropriate considerations when making employment-related decisions.

_________________________

*Josh Sudbury is a senior associate at Ford Harrison in its Nashville office, where he concentrates his practice on representing management in a variety of labor and employment matters. He received his J.D. at University of Memphis School of Law in 2009. Josh may be reached at jsudbury@fordharrison.com or 615-574-6705.

Allison Cotton an associate at Ford Harrison in its Nashville office, where she concentrates her practice on the representation of employers in labor and employment matters.  She received her J.D. from University of Tennessee School of Law in 2010, where she was a Student Materials Editor for the Tennessee Law Review and a Research Editor for Transactions: The Tennessee Journal of Business Law. Allison may be reached at acotton@fordharrison.com or 615-574-6706.

By: J. Gregory Grisham*

On March 18, 2015, the National Labor Relations Board’s (“NLRB’) General Counsel Richard F. Griffin, Jr. issued a 30-page Memo (“GC Memo”) summarizing current NLRB case law addressing Employer Work Rules.[i] The GC Memo breaks down Employer Handbook Rules into several categories and offers examples of “unlawful” rules and “lawful” rules under each category explaining why the rules were found to be unlawful or lawful.

A.    Handbook Rules Regarding Confidentiality

The GC Memo states that employees have a right under Section 7 of the National Labor Relations Act (“Act”) “to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees, such as union representatives.” Section 7 rights apply to both union and non-union employees. The GC Memo further states that an employer's confidentiality policy that expressly prohibits employees from discussing their terms and conditions of employment or that can be reasonably understood by employees as prohibiting such discussions would violate the Act. The GC Memo also notes that broad employer confidentiality rules that encompass employee or personnel information will be reasonably construed by employees as limiting protected Section 7 activity absent further clarification.

           The GC Memo recognizes that broad employer confidentiality rules are lawful where they do not reference employee information or information that could reasonably be construed as a term and condition of employment, since employers have a legitimate business interest in protecting the confidentiality of certain types of business information.  Even unlawful confidentiality rules can pass muster if when viewed in context employees would not reasonably understand the rules to restrict Section 7 activities.

1.     Examples of “Unlawful” Confidentiality Rules[ii]

• Do not discuss "customer or employee information" outside of work, including "phone numbers [and] addresses."

• "You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer's] associates was obtained in violation of law or lawful Company policy)."

• "Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.... Do not discuss work matters in public places."

• Confidential Information is: "All information in which its loss, undue use or unauthorized disclosure could adversely affect the [Employer's] interests, image and reputation or compromise personal and private information of its members."

2.     Examples of “Lawful” Confidentiality Rules[iii]

• No unauthorized disclosure of "business 'secrets' or other confidential information."

• "Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers."

•Prohibition on disclosure of all "information acquired in the course of one's work."

B.    Employer Handbook Rules Regarding Employee Conduct toward the Company and Supervisors

       The GC Memo notes Section 7 rights include the right of employees “to criticize or protest their employer's labor policies or treatment of employees.” Examples include rules that prohibit employees from engaging in conduct that is "disrespectful," "negative," "inappropriate" or "rude" toward their supervisor or other member of management unless such rules are clarified or placed in proper context. Moreover, rules that prohibit “false statements” will be found to be unlawful unless it is specified that the prohibition is limited to “maliciously false statements.”

The GC Memo further states that rules that require employees to be “respectful and professional to coworkers, clients, or competitors, but not the employer or management” will generally pass muster because the employer has a legitimate interest in protecting and maintaining these types of relationships. Finally, rules that prohibit insubordinate conduct are also generally found to be lawful. 

1.     Examples of “Unlawful” Rules Regulating Employee Conduct towards the Employer[iv]

• "Be respectful to the company, other employees, customers, partners, and competitors."

• Do "not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors."

• "Chronic resistance to proper work-related orders or discipline, even though not overt insubordination" will result in discipline.

• "[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer's] business operation or reputation."

• Do not make "[s]tatements "that damage the company or the company's reputation or that disrupt or damage the company's business relationships."

2.     Examples of “Lawful” Rules Regulating Employee Conduct towards the Employer[v]

• No "rudeness or unprofessional behavior toward a customer, or anyone in contact with" the company.

• "Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors."

• "Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake."

• "Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in" discipline.

C. Employer Handbook Rules Regulating Conduct Towards Fellow Employees

The GC Memo sets forth a third area of Section 7 rights that protect employee rights to “argue and debate with each other about unions, management, and their terms and conditions of employment.” Thus, employer rules that prohibit "negative" or "inappropriate" discussions among its employees, without further clarification, can be reasonably construed by employees as infringing on their Section 7 rights. However, the GC Memo recognizes that employer rules that prohibit harassment are lawful provided they cannot be reasonably read as proscribing “vigorous debate or intemperate comments regarding Section 7 protected subjects.”

1.     Examples of “Unlawful” Employee-Employee Conduct Rules[vi]

• "[D]on't pick fights" online.

• Do not make "insulting, embarrassing, hurtful or abusive comments about other company employees online," and "avoid the use of offensive, derogatory, or prejudicial comments."

• "[S]how proper consideration for others' privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion."

• "Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail. ..."

2.     Examples of “Lawful” Employee-Employee Conduct Rules[vii]

• "Making inappropriate gestures, including visual staring."

• Any logos or graphics worn by employees "must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message."

• "[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors."

• No "harassment of employees, patients or facility visitors."

• No "use of racial slurs, derogatory comments, or insults."

D. Employer Handbook Rules Regarding Employee Interaction with 3rd Parties

      The fourth area of protected Section 7 activity addressed by the GC Memo is the “right to communicate with the news media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment.” Given this right to communicate, employer rules (such as company media policies) that could reasonably be interpreted as limiting such communications will be found to be unlawfully overbroad.  The employer of course may specify by rule the employees who are authorized to speak on the employer’s behalf.

1.     Examples of “Unlawful” Rules Regulating Third Party Communications[viii]

• Employees are not "authorized to speak to any representatives of the print and/or electronic media about company matters" unless designated to do so by HR, and must refer all media inquiries to the company media hotline.

• "If you are contacted by any government agency you should contact the Law Department immediately for assistance."

2.     Example of “Lawful” Rules Regulating Employee Communications with Outside Parties[ix]

• "Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry. While reporters frequently shop as customers and may ask questions about a matter, good reporters identify themselves prior to asking questions. Every employee is expected to adhere to the following media policy: Answer all media/reporter questions like this: 'I am not authorized to comment for [the Employer] (or I don't have the information you want). Let me have our public affairs office contact you."

E. Employer Handbook Rules Restricting Use of Company Logos, Copyrights, and Trademarks

      Another area of potential conflict between Employer rights and the Section 7 rights of employees are handbook rules that restrict employee use of company logos, copyrights, or trademarks. The GC Memo recognizes that while “copyright holders have a clear interest in protecting their intellectual property” employer rules can violate the Act where they prohibit employees' fair protected use of that property such as use of the employer’s “name and logo on picket signs, leaflets, and other protest material.”

1.     Examples of “Unlawful” Rules Banning Employee Use of Logos, Copyrights, or Trademarks[x]

• Do "not use any Company logos, trademarks, graphics, or advertising materials" in social media.

• "Use of [the Employer's] name, address or other information in your personal profile [is banned]…. In addition, it is prohibited to use [the Employer's] logos, trademarks or any other copyrighted material."

2.     Example of “Lawful” Rules Protecting Employer Logos, Copyrights, and Trademarks[xi]

• "Respect all copyright and other intellectual property laws. For [the Employer's] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer's] own copyrights, trademarks and brands."

F. Employer Handbook Rules Restricting Photography and Recording

The GC Memo states that Employees have Section 7 rights “to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures and recordings.” Therefore, rules that prohibit any photography or recording or ban the possession of personal devices in the workplace where they can reasonably be construed to “prohibit the taking of pictures or recordings on non-work time” will violate the Act.

1.     Examples of “Unlawful” Rules Banning Photography, Recordings, or Personal Electronic Devices[xii]

• "No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any [Employer] employee or [Employer] operation...."

• A total ban on use or possession of personal electronic equipment on Employer property.

• Prohibition from wearing cell phones, making personal calls or viewing or sending texts "while on duty."

• No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.

G. Employer Handbook Rules Restricting Employees from Leaving Work

The GC Memo recognizes that Section 7 gives employees the right to go on strike. Therefore, handbook provisions that “regulate when employees can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.”  The GC Memo further states that rules that do not contain the words “strikes," "walkouts," "disruptions," “or the like,” will not be reasonably interpreted by employees as limiting their protected concerted activity and will not violate the Act.

1.     Example of “Unlawful” Handbook Rules Relating to Restrictions on Leaving Work[xiii]

• "Failure to report to your scheduled shift for more than three consecutive days without prior authorization or 'walking off the job' during a scheduled shift" is prohibited.

2.     Example of “Lawful” Handbook Rules Relating to Restrictions on Leaving Work[xiv]

•"Walking off shift, failing to report for a scheduled shift and leaving early without supervisor permission are also grounds for immediate termination."

H. Employer Conflict-of-Interest Rules

The GC Memo also stresses that Section 7 protects “employees’ rights to engage in concerted activity even if that activity is in conflict with the employer's interests.” For example, such activities may include “a protest in front of the company ... a boycott, and [the] solicit[ation][of] support for a union while on non-worktime.” Employer conflict-of-interest rules that would reasonably be construed as prohibiting such protected activities will be found unlawful. The Memo notes that such rules will be found to be lawful if “the rule includes examples or otherwise clarifies that it is limited to legitimate business interests, employees will reasonably understand the rule to prohibit only unprotected activity.”

1.     Example of “Unlawful” Conflict-of-Interest Rules[xv]

• Employees may not engage in "any action" that is "not in the best interest of [the Employer]."

2.     Examples of “Lawful” Conflict-of-Interest Rules[xvi]

• Do not "give, offer or promise, directly or indirectly, anything of value to any representative of an Outside Business," where "Outside Business" is defined as "any person, firm, corporation, or government agency that sells or provides a service to, purchases from, or competes with [the Employer]." Examples of violations include "holding an ownership or financial interest in an Outside Business" and "accepting gifts, money, or services from an Outside Business."

• As an employee, "I will not engage in any activity that might create a conflict of interest for me or the company," where the conflict of interest policy devoted two pages to examples such as "avoid outside employment with an employer customer, supplier, or competitor, or having a significant financial interest with one of these entities."

I.      CONCLUSION

The GC Memo is helpful to employers in that it sets forth examples of handbook rules that may be open to challenge under the Act as well as examples of rules that will found to be lawful. The Memo stresses that the context in which the rule is presented is an important consideration in evaluating the legality of the rule. Wise employers and their counsel should undertake a review of existing handbook rules in light of this guidance and consider modifying handbook provisions that may run afoul of the Act.

_________________________

*J. Gregory Grisham is Of Counsel to Leitner Williams Dooley & Napolitan, PLLC in its Nashville Office. Greg may be reached at greg.grisham@leitnerfirm.com or (615) 255-7722.

By William (Zan) Blue*

In EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc), the U.S. Court of Appeals for the Sixth Circuit found in favor of Ford Motor Company in a disability discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). The decision is a big win for Ford, and for all employers.

The EEOC claimed that Ford should have allowed an employee who had a severe case of irritable bowel syndrome to telecommute most of the time, even though her job duties required in-person contact with suppliers and computer work that could not be easily done from a remote location.

Rejecting the EEOC’s arguments and overturning an earlier decision against Ford by a three-judge panel of the Sixth Circuit, a majority of the 15 judges for the full Court held that regular, predictable, on-site attendance is necessary to be “qualified” for jobs requiring team work and interactive behaviors. The majority, citing the statute, regulations, other courts’ opinions and the “sometimes forgotten guide” of common sense, said regular in-person attendance is an essential function -- and a prerequisite to essential functions -- of most jobs.

Pause here to consider the Court’s analysis -- the Americans with Disabilities Act (ADA) requires that an employer engage in interactive dialogue concerning reasonable accommodation with qualified individuals with a disability who can perform the essential functions of the job, with or without reasonable accommodation. The Court found the EEOC did not get past the first and preliminary inquiry -- whether the employee was qualified.

There is no question that she was disabled. She had debilitating irritable bowel syndrome. For several years her attendance was poor by any standard. In 2008, she missed 1.5 days of work per week while in 2009, she was absent more than she was present. Ford supervisors worked with her for years, trying telecommuting three times and a performance improvement plan. Her job performance deteriorated, and co-workers had to pick up the slack.

The employee testified by affidavit that 95 percent of her job, whether on site or remote, consisted of email or computer use. (Ford had evidence to the contrary.) The EEOC and the five dissenting judges would have allowed the employee’s testimony to create a “genuine issue of material fact,” preventing Ford from winning summary judgment and meaning that the case would go to trial. Importantly here, the majority rejected that proposition, holding “an employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment, for it does not create a genuine dispute of fact.”

The EEOC asserted it was “self-evident” that technology had advanced to the point that at least some essential functions could be performed at home. The Court agreed, in the abstract, but found the record in this case could not support such a finding. The Court said that its ruling had to be based on the evidentiary record in the case, not abstract assertions.

The dissent conceded, sort of, that regular predictable attendance was an essential function of a job where equipment or other materials necessary to do the job were found only on site, or where the job involved direct services to clients or customers. This is an important concession.

Thus, despite advances in technology and remote work and depending on the employee’s job duties, an employee may not be “qualified” within the meaning of the ADA if the employee can’t come to work. Because the employee in this case was not “qualified,” the majority did not even get to the issue of reasonable accommodation. The dissent discussed its perception of Ford’s failings in this regard at great length, and in this writer’s opinion, completely disregards all the things Ford did do, focusing instead only on the last proposal from the plaintiff -- that she be allowed to work for “up to four days a week” from home. By the time this came to the table, Ford had worked with her for years as her attendance got worse and her job performance deteriorated.

Now, before employers and defense lawyers read too much into this opinion, consider three things. First, Ford worked with this individual for years, tolerating attendance that a smaller employer probably could not tolerate. Second, although a District Court in Michigan granted summary judgment to Ford initially, the majority of the three-judge Sixth Circuit panel ruled in favor of the EEOC, finding summary judgment even on these facts to be improper. Ford had to go to the full panel of 15 judges to win, and even there, five judges dissented. Third, the EEOC has demonstrated time and again that it does not consider itself bound by decisions of the federal appellate courts, and thus can be expected to continue to argue that folks don’t need to come to work if they have a disability. Ford Motor Company clearly decided it had to stand up to the EEOC and maintain control of its workplaces.

With those caveats, this is an important ruling, not least because the Court used common sense -- regular, predictable attendance is required to perform the essential functions of jobs involving interactive behaviors with co-workers and managers, jobs involving equipment and materials located only on site, and jobs requiring direct interaction with customers and clients.

_____

*William (Zan) Blue of Constangy, Brooks, Smith & Prophete in its Nashville office, where he is a “generalist” in his practice of representing management in labor and employment matters. He received his J.D. at Vanderbilt University School of Law in 1983. Zan may be reached at zblue@constangy.com or 615-320-5200.

I.  Introduction

On March 25, 2015, the Supreme Court, in Young v. UPS, Inc., issued a 6-3 opinion authored by Justice Breyer in which the Court created a new standard to apply to pregnancy discrimination cases, thereby rejecting the interpretations offered by the parties.[i]

II.  Pregnancy Discrimination Act

In 1978, Congress amended Title VII of the Civil Rights Act of 1964 (“Tile VII”) to specify that the prohibition against discrimination “because of” or “on the basis of” sex includes discrimination “because of or on the basis of pregnancy, child birth, or related medical conditions.”  42 U.S.C. § 2000e(k).  The second clause of this Title VII provision further specifies that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Id.  This amendment came to be known as the Pregnancy Discrimination Act (“PDA”). How the second clause of the PDA should be interpreted would later prove to be the lynchpin of the decision in Young v. UPS.  

III.  Factual Background 

UPS has a provision in its collective bargaining agreement mandating that temporary light-duty work be provided to employees who cannot perform their normal work assignments due to an on-the-job injury (“First Provision”).  In accordance with the First Provision, UPS maintains a policy whereby it accommodated employees suffering from on-the-job injuries with temporary light-duty work (“Policy”).  Additionally, UPS provides accommodations to employees with ADA-qualifying conditions and impairments, regardless of whether those impairments resulted from an on-the-job injury.  Lastly, a second CBA provision requires UPS to accommodate drivers who have lost their commercial DOT certification, due to a failed medical exam, a lost driver’s license, or a motor vehicle accident with temporary “inside” (i.e., non-driving) jobs (“Second Provision”).  Unlike the First Provision, the Second Provision does not require UPS to provide light-duty work because an “inside job” usually involves heavy lifting.  Stated another way, the DOT-disqualified driver must be able to physically perform all the essential functions of the available inside job.  

Peggy Young, the plaintiff, is a former part-time “air driver” for UPS who worked at one of its facilities in Landover, Maryland.  The job description for the driver positions at UPS listed the ability to lift 70 pounds as one of its essential job functions.  But, according to Young, her job generally consisted of delivering only light packages and letters.  As such, Young contends, she “rarely” lifted over 20 pounds as a part of her job.  After becoming pregnant, Young requested and received a brief unpaid leave of absence before requesting a light-duty work accommodation from UPS shortly thereafter.  Young’s request for light-duty work was based on a doctor’s note that she provided, which imposed a 20-pound lifting restriction (and, later, a 10-pound restriction) during the entirety of her pregnancy.  The doctor’s note did not assert that the lifting restriction was the result of any complications with Young’s pregnancy.  Relying on the Policy, as well as Young’s inability to perform the essential job functions of the driver position, UPS denied Young’s request and prohibited her from returning to work in this position.  Young ultimately began an extended leave of absence at that time.  

IV.  Procedural Background

In October 2008, Young sued UPS in the U.S. District Court for the District of Maryland (“District Court”), alleging, in pertinent part, that UPS’s denial of her light-duty accommodation request violated the PDA.  After UPS moved for summary judgment, the District Court, applying the McDonnell Douglas burden-shifting framework, ruled for UPS as to Young’s PDA claim because she had no direct evidence of discrimination, could not identify any comparators treated more favorably than her, and failed to rebut UPS’s non-discriminatory reason for the denial of her accommodation request (i.e., its reliance on the Policy) as pretextual.   

On appeal, the Fourth Circuit Court of Appeals unanimously affirmed the District Court’s summary judgment award in UPS’s favor as to Young’s PDA claim.  In doing so, the Fourth Circuit inter alia rejected Young’s argument that the Policy violated the PDA because it offered light-duty work to some employees -- those injured on the job, suffering from ADA-qualifying impairments, or who had lost their commercial DOT certifications -- but not offering the same accommodation to pregnant employees.  The Fourth Circuit considered Young’s interpretation of the PDA to be a bridge too far because it would essentially grant pregnant employees a “most favored nation” status.  In other words, such an interpretation would give employees with pregnancies the opportunity to receive light-duty work as an accommodation while denying employees with off-the-job injuries the same opportunity.  Young subsequently petitioned the Supreme Court for certiorari.

V.  Oral Arguments     

Samuel R. Bagenstos, a Professor of Law, argued on behalf of Young.  In his opening statement to the Supreme Court, Professor Bagenstos summarized Young’s position as follows:  

If Peggy Young sought an accommodation for a 20-pound lifting restriction that resulted from any number of conditions, whether acquired on or off the job, the summary judgment record reflects that UPS would have granted that accommodation.  But because Peggy Young’s 20-pound lifting restriction resulted from her pregnancy and not from one of those conditions, UPS rejected her request.  That, we submit, is a violation of the second clause of the PDA which, if it means anything, must mean that when an employee seeks an accommodation or benefit due to pregnancy, that she is entitled to the same accommodation that her employer would have given her.

Donald B. Verrilli, Jr., the U.S. Solicitor General, argued on behalf of the federal government as amicus curiae in support of Young.  He argued that Young’s interpretation of the PDA was consistent with the intent of the law, explaining:

The point of the [PDA] is to reduce the number of women who are driven from the workforce or forced to go months without an income as a result of becoming pregnant.  The second clause of the PDA advances that interest in a narrow but important way . . . . We think the one thing an employer can’t do as a result of the second clause is draw distinctions that treat pregnancy-related medical conditions worse than other conditions with comparable effects on work.  It’s that single thing.

Additionally, Solicitor General Verrilli considered it “significant” that the EEOC’s Enforcement Guidance on Pregnancy Discrimination was consistent with Young’s interpretation of the PDA.

Caitlin J. Halligan, who argued on behalf of UPS, asserted that Young’s and the federal government’s interpretation of the second clause was improper because it was inconsistent with the rules of statutory construction:

The reading that we propose is very straightforward.  What Congress said in the second clause, the key words are “the same as other persons.” What “other” means is simply distinct from whatever is mentioned first.  So employers have to treat pregnant employees the same as some distinct group of non-pregnant employees that are similar in their ability or inability to work[,] and that’s exactly what UPS’s [P]olicy does . . . . [Young]’s construction would read the first clause out of the statute entirely.  The words in the first clause are “because of.”  And this Court has consistently understood those words across protected traits to require discrimination -- in an intentional discrimination case, that you have discrimination that is actually motivated by the protected trait.  If the second clause does the work [Young] suggests . . . it would mean that you don’t need to show that the protected trait, pregnancy, actually motivated the adverse treatment.  So [her] construction would read that out of the statute entirely.

VI.  Supreme Court’s Opinion

The Supreme Court rejected the dueling interpretations offered by the parties during oral arguments. Instead, the Court chose “Door Number 3” and created a new standard to apply to pregnancy discrimination cases.  Pursuant to this standard, which continues to apply the traditional McDonnell Douglas burden-shifting framework, an employer may articulate a legitimate, non-discriminatory rationale for its facially-neutral accommodation policy.  But, in response, a pregnant employee can nevertheless use such rationale as evidence of pretext if the employer’s articulated rationale for the accommodation policy is not “sufficiently strong” and imposes a “significant burden” on pregnant workers.  Put another way, the reasoning for the policy must be “sufficiently strong” to justify the “significant burden” placed on the pregnant employee.  Unfortunately, the Supreme Court declined to define these terms with much specificity, so the overall impact of its ruling in Young v. UPS is somewhat hard to predict until the various Federal Circuits facing this issue in the future begin to delineate these standards.   

Applying its newly-fashioned standard to the facts of the case, the Supreme Court reversed the Fourth Circuit’s grant of summary judgment on the basis that Young should be afforded the opportunity to establish a genuine factual dispute over whether the Policy created a significant burden on pregnant employees and whether UPS’s proffered reason for the Policy’s implementation are insufficiently strong to justify this burden.  However, the Court flatly rejected any reliance on the EEOC’s 2014 Enforcement Guidance on Pregnancy Discrimination as misplaced because the EEOC did not articulate its reasoning for the Guidance, and the position that the EEOC took in the Guidance was inconsistent with prior positions taken by the federal government.  Moreover, the Court accepted certiorari in Young v. UPS prior to the issuance of this Guidance. 

VII.  Takeaways

Employers should examine any policies that impact pregnant employees and assess whether those policies impose a “significant burden” on pregnant employees.  If they do, it becomes incumbent upon the employer to analyze whether its reasoning for imposing such a burden is “sufficiently strong” to justify doing so.  While these standards are somewhat nebulous, at least one thing is obvious.  If an employer wants to avoid running afoul of the PDA, they should avoid implementing any policies that offer accommodations to multiple non-pregnant employees, yet fail to extend the same benefit to pregnant employees. 

*Marcus Crider is a partner and chair of the Retail/Hospitality Department at the Waller Law Firm, where he concentrates his practice on the representation of management in labor and employment matters. Marcus received his J.D. in 1996 from the University of Arkansas. He may be reached at marcus.crider@wallerlaw.com or (615) 850-8067.

Here’s the latest newsletter from TBA’s Labor and Employment Section.  I want to thank this issue's authors for their insightful articles – Marcus Crider, Greg Grisham, Josh Sudbury, and Allison Cotton. If you have an article or idea for an article I urge you to e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266.

Bruce Buchanan

By Bruce E. Buchanan*

At a recent Federal Bar Association Conference in Chicago on Worksite Enforcement, there was a panel discussion with attorneys Sharon Mehlman, Marcine Seid, and Eileen Monblanco.  This article grows out of this panel discussion.

During an investigation by Immigration and Customs Enforcement after receipt of a Notice of Inspection (NOI)/subpoena, there are several opportunities to negotiate with ICE. The first opportunity is the date that the I-9 forms must be provided. The NOI states the I-9 forms and other subpoenaed documents must be provided to ICE within three business days of service of the NOI. Often, if counsel contacts the ICE Officer or auditor, one can obtain a short extension of two to 10 days. Of course, you need to provide an appropriate reason for the extension – small HR staff; thousand of I-9 forms, counsel was just hired, etc. Unfortunately some offices will not grant any extensions.

If a company receives a Notice of Suspect Documents (NSD), it used to be common practice to negotiate with ICE concerning what was a “reasonable” period to resolve the work status of those on the NSD. Now, the NSDs state the employer has 10 days. ICE has stated the 10 days is not a national policy but many regions treat it as such.  However, in other regions this 10-day period is negotiable if one can show the impact that the loss of unauthorized employees will have on the U.S. citizen employees and /or the community – assuming the facility will be forced to shut down due to a lack of sufficient number of employees.

On some occasions, ICE will negotiate about a “roll-out schedule” wherein the employer provides the notice to a certain group of employees that ICE has found their present work authorization is invalid and if they have other documentation to establish work authorization, please provide it within 10 days.

A further opportunity to negotiate with ICE is the amount of penalties set forth in the Notice of Intent to Fine (NIF). This is the most important part of the negotiations. But before you start negotiations, you must inform ICE in writing, that you wish to have a hearing before OCAHO. If you fail to do such, the NIF will become final in 30 days.

Most ICE attorneys are amenable to negotiating a reduction in the proposed penalties. There are a number of arguments that one can make for a reduction. These arguments include: listing technical error as a substantive error; incorrectly applying the five mitigating/aggravating factors; counting an employee twice; for timeliness violations – beyond the five – year statute of limitations; company not required to have I-9 form because individual is an owner with substantial control or hired on November 6, 1986 or beforehand; and math errors by ICE. Additionally, if the company is in poor financial condition, which you can establish with financial records, this is a powerful tool for negotiations on both the amount of the penalty and the length of time to pay the penalties (sometimes up to five years).

One last item which is negotiable is whether ICE is going to issue a press release about the settlement of the matter. However, in many parts of the United Sates, ICE never releases a press release for settlements.

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This article was originally published at my blog - http://blogs.ilw.com/entry.php?8629-Negotiating-in-an-ICE-Inspection.

*Bruce E. Buchanan is an attorney at the Nashville and Atlanta offices of Siskind Susser, P.C.  He is a graduate of Vanderbilt University School of Law. Bruce is the outgoing Chair of the TBA Immigration Law Section.  He writes a blog on employer immigration compliance for ilw.com, located at www.EmployerImmigration.com, and is a contributor to LawLogix’s I-9 and E-Verify Blog, located at http://www.lawlogix.com/blog and HR Professionals Magazine. Bruce may be reached at bbuchanan@visalaw.com or (615) 345-0266.

By:  TBA’s Immigration Law Section

On May 26, 2015, the U.S. Court of Appeals for the 5th Circuit refused the Obama administration’s request for an emergency stay of Judge Andrew Hanen’s February 2015 temporary injunction halting both the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the new Deferred Action for Parental Accountability (DAPA) program that extends deferred action and employment authorization benefits to qualifying parents of U.S. citizens and lawful permanent residents.

This action means the Obama administration and the USCIS remain unable to proceed with DAPA and expanded DACA.  Two judges of the 5th Circuit found the Obama administration was “unlikely to succeed” in establishing that the 26 plaintiff  states lack a sufficient injury, or “standing,” to challenge the President’s actions. The third judge found that the question of the appropriateness of DAPA and DACA was a political one that the judiciary should take no role in. 

This decision does not mean that the 5th Circuit has agreed with the plaintiffs who sought and obtained the injunction, or with the lower court’s rationale for issuing the injunction. The decision does mean that implementation of the DACA expansion and DAPA programs cannot move forward unless/until the injunction is later lifted or the Obama Administration prevails on the merits. The Administration appears to have decided to not appeal this decision; rather, it has decided to await the 5th Circuit’s hearing on July 10, 2015 on the merits of the injunction. At issue will be whether the stay was legally justified to stop the implementation of DAPA and expanded DACA while the parties litigate the legality of the President’s executive actions under the Administrative Procedures Act.