Tag Archives: Stephanie Quincy

minorities

Language issues become workplace legal issues

Two Whole Foods grocery store employees in Albuquerque were recently suspended after getting in a dispute with their manager over speaking Spanish in the workplace.

That incident raises an employment law question that leaves many Arizona employers scratching their heads: Can employers require their employees to only speak English in the workplace?

The answer to that question, like the gray area that surrounds many legal questions, is “it depends.”

“While there is no specific law that requires a specific language in the workplace, Title VII of the Civil Rights Act and the Arizona Civil Rights Act prohibit discrimination based upon national origin and language is closely tied to national origin,” said Stephanie Quincy, a partner with Steptoe & Johnson LLP in Phoenix. “The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces Title VII and the Arizona Civil Rights Division of the Arizona Attorney General’s Office enforces the Arizona Civil Rights Act.  Both agencies are very concerned that employers will enact language requirements not because of business necessity, but as a way of excluding certain nationalities from the workplace. The Phoenix office of the EEOC sued a restaurant located on the Navajo Nation for enacting an English-only policy, resulting in years of protracted litigation for the employer.”

That restaurant is not alone. The EEOC recently released figures on what kinds of employment discrimination cases are being brought to the agency and complaints of discrimination based on national origin, including those involving perceived problems with language ability or accent, have increased  77 percent since 1997. The EEOC has suggested that it might be the increasing diversity of the American workforce, but civil rights advocates think it’s more likely due to a climate of fear, particularly in states like Arizona that have been enacting laws hostile to immigrants, both legal and undocumented.

“Generally speaking, English-only rules are not in and of themselves unlawful,” said John Balitis, a director at Fennemore Craig who practices in the labor and employment area. “They are permissible when needed to promote the safe and efficient operation of the employer’s business.”

According to Joseph T. Clees, shareholder, and Alexandra J. Gill, associate, of Ogletree, Deakins, Nash, Smoak & Stewart, there are some circumstances where an English-only rule may be necessary to further a safety, efficiency or other legitimate business concern. The EEOC has provided examples of such circumstances including, communication with customers, employees or supervisors who only speak English; emergency situations; cooperative work assignments where the English-only rule is necessary for efficiency purposes; and to assist supervisors with monitoring of performance.

“This is an extremely high standard and very difficult to meet,” Quincy said. “Furthermore, some of these categories would only permit an English-only rule where the business necessity is present and would not support a rule completely prohibiting non-English languages completely.”
This is where that gray area comes into play when it comes to language in the workplace, experts said.

“If the employer cannot demonstrate that (speaking English) is a ‘business necessity,’ it cannot justify such a rule and could be subject to legal action by any employee who is affected by the policy,” Quincy said. “A policy does not have to be a formal written policy. A rogue supervisor can create a policy by simply telling employees speaking Spanish to quit doing so. Such a policy can almost never be supported when enforced on employee breaks or when employees are having non-work related discussions.”

Because the EEOC has taken the position that English-only policies can violate Title VII, Clees and Gill said employers adopting these policies can face a range of penalties under Title VII if the policy is found to be discriminatory.

“An individual alleging a violation of Title VII may seek to recover damages including back pay, front pay, compensatory damages, punitive damages, and attorneys’ fees,” they said. “Individuals may also request injunctive relief.”

Because of the potential backplash, Clees said employers should carefully analyze their reasoning for instituting an English-only policy prior to doing so.

“Employers should consider whether the policy has important safety justifications and/or business justifications, and whether instituting the policy would be effective in advancing the desired business purpose,” he said. “Employers should also consider whether there are any alternatives to an English-only policy that would accomplish the same goals. If an employer decides to an English-only policy is necessary, it should ensure that employees are clearly informed of the policy, including when and where it applies.”

While there is no precise test for weighing or evaluating the business reasons for a language policy in the workplace, Quincy said the EEOC suggests considering:
· Evidence of safety justifications for the rule.
· Evidence of other business justifications for the rule, such as supervision or effective communication with customers.
· Likely effectiveness of the rule in carrying out obectives.
· English proficiency of workers affected by the rule.

“Employers should only (implemented policies that either completely or partially prohibit the use of any language other than English) if they can articulate a business necessity for such policies,” said Charitie L. Hartsig, an associate at Ryley Carlock & Applewhite. “They should also clearly inform employees of the circumstances under which they will be required to speak only English and the consequences of violating the policy. Limited English-only policies have been allowed under Title VII where the policies are in place to ensure clear communications regarding the performance of dangerous and safety-sensitive tasks. The EEOC presumes that an employer that completely prohibits employees from speaking their native language disadvantages the employee’s employment opportunities on the basis of national origin under Title VII. However, the Ninth Circuit rejected the EEOC’s per se rule. Nevertheless, Arizona employers should be cautious about implementing English-only policies and do so only when there is a business necessity for doing so.”

Despite an employer’s best business intentions, experts said instituting a language policy in the workplace is most likely a powderkeg ready to explode.
“The EEOC presumes that English-only rules applied at all times are discriminatory,” Balitis said. “Because the EEOC looks with disfavor on English-only rules, an employer may be forced to litigate even the most carefully crafted rule.”

Steptoe partner Stephanie Quincy has been placed among the Top 50 Attorneys and among the Top 25 Women in Arizona.

Steptoe Phoenix Lawyers earn recognition

Five partners in Steptoe’s Phoenix office have received individual mentions in the 2013 edition of Chambers USA.  The prestigious legal guide identifies the leading lawyers and law firm practices based on interviews conducted by Chambers researchers with thousands of lawyers and their clients.

Fourteen Steptoe attorneys have been recognized in the 2013 Southwest Super Lawyers.  The annual list selects only five percent of the total lawyers in the region based on peer review and the publication’s independent research.

In addition to being named to the 2013 Southwest Super Lawyers list, Steptoe partners Floyd Bienstock, Pat Derdenger, and Stephanie Quincy have been placed among the Top 50 Attorneys, and partners Stephanie Quincy and Nancy White have been placed among the Top 25 Women in Arizona for receiving the highest point totals in the nomination, research, and review process.

The following Steptoe lawyers have been recognized in Chamber USA 2013:

· Floyd Bienstock — Litigation: General Commercial (Arizona)
· David Bodney — First Amendment Litigation (Nationwide)
· Lawrence Katz — Labor & Employment (Arizona)
· Stephanie Quincy — Labor & Employment (Arizona)
· Steven Wheeless — Labor & Employment (Arizona)

The following Steptoe attorneys have been recognized in 2013 Southwest Super Lawyers:

· Floyd Bienstock – Insurance Coverage (Top 50)
· David Bodney – First Amendment, Media, Advertising
· Bruce Converse – Insurance Coverage
· Ben Cooper – Appellate
· Pat Derdenger – Tax (Top 50)
· Dawn Gabel – Tax
· Kevin Hunter – Business/Corporate
· Larry Katz – Employment & Labor
· Kevin Olson – Business/Corporate
· Stephanie Quincy – Employment & Labor (Top 50 and Top 25 Women)
· Karl Tilleman – Business Litigation
· Nancy White – Mergers & Acquisitions (Top 25 Women)

The following Steptoe attorneys have been selected as 2013 Southwest Rising Stars:

· Erin Bradham – Civil Litigation Defense
· Robert Vaught – Employment & Labor

Steptoe’s Phoenix office celebrated its 25th anniversary in 2012.

law

2013 Top Lawyers list: Employment and labor

Az Business magazine’s 2013 top lawyer list was created after the editorial department asked Arizona law firms to nominate their two best attorneys from 16 different categories for consideration. Those nominees were put on a ballot and were voted on by their peers in the legal community and the readers of Az Business magazine to determine the exclusive 2013 Az Business Magazine Top Lawyers list.

Adrian L. Barton
Sacks Tierney P.A.
480-425-2629
www.sackstierney.com
Barton has several labor-related publications, including “Employee Voting Rights: Arizona Employer Obligations,” “Social Networking and the Workplace,” and “Reducing the Risk of Wrongful Termination.”

James L. Blair
Renaud Cook Drury Mesaros, PA
602-256-3020
www.rcdmlaw.com
Blair is his firm’s chair of the Employment Law and Litigation Practice Group and was a contributor to the “Compendium of Significant Employment-Related Case Law and Statutes,” ALFA International, from 2003-2009.

Joseph T. Clees
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
602-778-3700
www.ogletreedeakins.com
Clees represents employers throughout the United States in discrimination and wrongful discharge cases and labor relations.

Scott Gibson
Davis Miles McGuire Gardner, PLL480-344-0918
www.davismiles.com
Over the years, Gibson has developed a reputation for his uncanny ability to quickly discern the most important issues in a case and to focus on ways to resolve rather than to expand litigation.

Donald Peder Johnsen
Gallagher & Kennedy, P.A.
602-530-8437
www.gknet.com
Johnsen practices exclusively in the area of employment and labor law and has been listed in “The Best Lawyers in America” from 2007-2013.

Pamela L. Kingsley
Tiffany & Bosco, P.A.
602-255-6015
www.tblaw.com
Kingsley’s counseling and advice often includes drafting and analyzing agreements for employment and severance, confidentiality, non-competition, and non-solicitation; policies for sexual harassment and oppressive or violent conduct, drug testing, safety, absences, and disabilities.

Michael D. Moberly
Ryley Carlock & Applewhite
602-440-4821
www.rcalaw.com
Moberly is an elected Fellow of the College of Labor and Employment Lawyers, a national organization established to recognize those attorneys who have distinguished themselves as leaders in the fields of labor and employment law.

Tibor Nagy, Jr.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
520-575-7442
www.ogletreedeakins.com
Nagy represents employers in all facets of labor and employment relations law, including discrimination and wrongful discharge cases, wage and hour law, employment contracts and manuals, and labor-management relations.

Stephanie Quincy
Steptoe & Johnson LLP
602-257-5230
www.steptoe.com
Quincy maintains a regular case load of employment litigation matters. Cases include civil rights (race, age, religion, gender and disability), wrongful termination, sexual harassment, defamation, and breach of contract claims.

Deanna Rader
Gordon Rees
602-794-2460
www.gordonrees.com
Rader has extensive experience advising public employers on constitutional matters, personnel issues, student rights, conflicts of interest, open meeting law, due process under the Individuals with Disabilities Education Act, and public records issues.

Lawrence J. Rosenfeld
Squire Sanders
602-528-4886
www.squiresanders.com
Rosenfeld has more than 35 years of experience in the area of employment law and is a fellow of the College of Labor and Employment Lawyers.

Debora Verdier
Sanders & Parks, P.C.
602-532-5760
www.sandersandparks.com
Verdier counsels companies with an eye toward preventing disputes and providing pre-litigation solutions and has experience in defending employers against EEOC charges and in litigating employment disputes.

Nonexempt Vs. Exempt Employees

Arizona employers face an onslaught of wage and hour claims

For Shayna Balch, business is booming.

Since the start of 2012, the labor attorney at Fisher & Phillips in Phoenix is seeing — on average — one to three wage and hour cases filed each day. This is compared with one or two a month in previous years. Nationally, the number of new Fair Labor Standards Act suits lodged in federal courts between 2010 and 2011 jumped more than 15 percent, according to Federal Judicial Caseload Statistics.

Historically, Balch says wage and hour cases have not been an issue in Arizona. Because of that, employers are not prepared for the trend and she worries that this a ticking time bomb waiting to explode.

“There are multiple causes (for the increase)” says John Thompson, who handles wage-hour cases at Fisher & Phillips and is the editor of the firm’s Wage Hour Laws Blog.

“They include a greater familiarity of plaintiff’s lawyers with wage-hour laws and with the many areas in which non-compliance can occur; workers’ increasing awareness of wage-hour requirements — including via the Internet and the media; the growing number and complexity of the laws themselves;  and the stepped-up enforcement efforts of government officials.”

As the economy suffered and employers looked for ways to reduce labor costs, many of the cost-cutting measures conflicted with employment laws, according to Phoenix attorney John Doran of Sherman & Howard, and that has led to an avalanche of wage and hour claims. The number of collective actions has increased by more than 400 percent nationally in the last decade. In Arizona, the increase has been even more dramatic.

“In Arizona, there has been a sudden and dramatic increase in wage and hour collective and class actions,” Doran says. “This should be a source of serious concern for Arizona employers.”

It’s particularly stressful for employers desperately trying to recover from the recession.

“Employers have looked for every possible angle to reduce labor costs including overtime, and many of those angles simply do not jive with the wage and hour laws,” Doran says. “This has been especially true with employers trying to convert their employees into independent contractors, which is an extremely difficult, and often mishandled strategy that has the attention of the Department of Labor and the I.R.S.”

The Department of Labor has increased its strength thanks to a significant bump in funding under the Obama Administration, increasing both its enforcement and public awareness campaigns. More than 250 new investigators have been hired and the revitalized Wage & Hour Division launched its “We Can Help” campaign in 2010 to increase visibility and accessibility to workers.

“The DOL has also been more aggressive in pursuing employers, by expanding the scope of wage and hour investigations, issuing more administrative subpoenas, and imposing more penalties on employers,” says Phoenix attorney Tracy A. Miller, shareholder. Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

And the DOL is making it even easier for employees to build cases against their employers. Last year, the DOL developed a smartphone application that allowed employees to keep track of their own time and monitor employer compliance with certain wage and hour requirements. The DOL also created hard copy “exhibits” for employees to track their time. In taking these steps, the DOL has stated that employees must be paid for any work they do, regardless of where they do it.

Empowered with DOL-provided tools, “We are seeing more individuals who file suit on their own behalf,” says Stephanie Quincy, a partner in the labor and employment practice group for Steptoe & Johnson. “In Arizona, if wages are not paid when they are due or the wages are withheld without a good faith reason, the employee is entitled to three times the amount, as a punishment for the employer. We are seeing employees filing these suits themselves, without an attorney.”

So where are employers most susceptible?

“The biggest increase has been in lawsuits and investigations involving workers who claim to be misclassified as independent contractors,” Miller says. “Failing to pay workers for pre-shift and post-shift activities, such as computer boot-up and power-down, is also still a hot issue. Another common mistake that the DOL and private litigants are focusing on is the failure to include bonuses and commissions when calculating overtime. Wage payments during temporary company shut downs and furloughs has been a hot issue, although usually these issues are resolved without a lawsuit.  Cases involving the misuse of the tip credit or tip pools have also been on the rise.  Finally, we continue to see off-the-clock cases from employees who work remotely and/or routinely use smartphones.”

All of this is a conundrum for employers, considering the changing face of the economy and the workplace. The DOL is encouraging employers to comply with the Fair Labor Standards Act, which was enacted in 1938 when people worked at work. Now, thanks to technology, many of us can work anywhere and anytime.

To protect themselves, employers of all sizes should engage in serious introspection, Doran advises.

“An internal wage and hour audit, if not a must, is still the most valuable tool employers have to fend off such claims,” Doran says, “Annual or bi-annual audits would include analyzing job descriptions and comparing them with what is actually happening in the workplace day to day; examining timekeeper practices; ensuring that supervisors and managers are adequately and accurately carrying out otherwise compliant pay practices; and much, much more. These audits are best conducted through outside legal counsel in order to cloak them in attorney-client privilege.”

Quincy says employers should examine each employee and determine if the employee — not the position — is doing the type of work that is considered “exempt” or “non-exempt.” Non-exempt employees must be paid overtime. Employers should also carefully examine deductions from pay and time, including automatic deductions such as rest and meal breaks. Employers must train supervisors that any changes to hours worked must be explained to the employee and the employee must sign off on them.  The employer should hold supervisors accountable for encouraging — or pressuring — employees to work off the clock or not to accurately record their hours.

“Often businesses feel as though they must be in compliance because they have been paying workers in the same way for years without any problems,” Miller says. “Very few businesses are completely in compliance with the wage and hour laws, however, and an investigation or a lawsuit is an expensive way to learn about violations.  Businesses that proactively audit their pay practices end up saving a lot of money in the long run.”