Failing to Contribute to Multiemployer Benefit Fund for “Alter Ego” Company Resulted in Criminal Indictments

A husband and wife who owned two businesses in New Hampshire were indicted in September on charges including mail fraud and false ERISA statements. The charges arose, in part, from the couple’s failure to make benefit fund contributions in connection with one of the two businesses—despite the fact that the business in question was  non-union. The federal court in Massachusetts that heard the case found that the non-union business was the “alter ego” of the couple’s other business, which was union-affiliated.

The two businesses had been set up as a “double-breasted” operation, in which unionized employer creates a separate non-union business to perform the same type of work in the same area as it does, generally for the purpose of obtaining work not available to a union-affiliated business. While the court in this case acknowledged that “double-breasted” operations are not “inherently unlawful,” there must be sufficient separation between the two businesses to avoid being deemed “alter ego” companies. The court found that the two businesses at issue in this case operated as a single employer, meaning that both entities, not the just the unionized entity, were bound by the applicable collective bargaining agreements.


Posted in Uncategorized | Tagged , , , , , , | Leave a comment

EEOC Issues Final Guidance on Retaliation

The U.S. Equal Employment Opportunity Commission recently issued final Enforcement Guidance on Retaliation and Related Issues.

The guidance addresses retaliation under each of the laws enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA). The guidance covers such topics as:

  • The scope of activity protected by anti-retaliation laws.
  • Legal analysis applicable to retaliation claims
  • Remedies available to employees who experience retaliation.
  • Rules prohibiting an employer from interfering with an employee’s exercise of rights under the ADA.

Posted in Uncategorized | Tagged , , , , , , | Leave a comment

New ADA Regulations Clarify Definition of Disability

The Department of Justice recently published its Final Rule amending regulations under the Americans with Disabilities Act (ADA) to incorporate changes made to the ADA as a result of the ADA Amendments Act of 2008 (ADAAA). The ADAAA, which went into effect January 1, 2009, was passed by Congress in response to Supreme Court decisions that had narrowly interpreted the ADA’s definition of “disability.” The ADAA was enacted to ensure that the term would be broadly construed and applied without extensive analysis of whether an individual’s impairment or condition meets the technical definition of “disability.” The DOJ’s Final Rule is intended to clarify the interpretation and application of the ADAAA.

Posted in Uncategorized | Tagged , , , , , , | Leave a comment

“Cat’s Paw” Theory of Retaliation: Employers can be held Liable for the Retaliatory Motives of Non-Management Employees

When you investigate an employee complaint of sexual harassment, how you conduct the investigation — and the actions you take as a result – matters a great deal. In fact, given a recent case expanding the basis upon which an employer can be held liable for retaliation, it may matter now more than ever.

In the case Vasquez v. Express Ambulance Service, Inc., the Second Circuit Court of Appeals held that an employer may be liable for unlawful retaliation if the employer allows itself to be manipulated by an employee into taking an adverse action against another employee, even if the employer itself had no retaliatory intent. The case arose from the complaint of Andrea Vasquez, an EMT working for Express Ambulance Service, Inc. Vasquez’s co-worker, dispatcher Tyrell Gray, sexually harassed Vasquez – harassment that culminated in Gray texting Vasquez a photo of his erect penis. Vasquez informed management about the harassment after receiving the photo and management began an investigation. Meanwhile, Gray found out Vasquez had reported him. Anticipating that he would be questioned about it, he altered text messages on his phone to make it appear that Vasquez had participated in a consensual sexual relationship with him. He printed out screen shots and had them at the ready when he was questioned by management about Vasquez’s allegations.

Management believed Gray’s side of the story, accepting the doctored text messages at face value and refusing Vasquez’s offer to show them her own phone. Determining that Vasquez had engaged in an inappropriate sexual relationship with Gray, they fired Vasquez. And so it seemed that, in this particular bout of he-said-she-said in the workplace, Gray had won.

But of course, that was not the end of the story. Vasquez sued Express Ambulance Service, and when the case reached the Second Circuit, the appellate court rejected the employer’s argument that it could not be held responsible for the retaliatory animus of Gray, a low-level, non-supervisory employee. Instead, the court adopted a legal theory known as the “cat’s paw” theory to hold the employer liable.

The cat’s paw theory of liability derives from an Aesop’s fable in which a monkey persuades a cat to pull roasting chestnuts out of the fire, promising they will eat them together. But the monkey eats all the chestnuts himself, leaving the cat with nothing but a burned paw for his trouble. In the Vasquez scenario, the employer is the cat and Gray is the monkey, tricking the unwitting employer into doing his bidding. The Second Circuit reasoned that the employer allowed itself to be manipulated by Gray due to its own negligence in refusing to examine Vasquez’s phone when she offered it, instead crediting Gray’s side of the story without question—despite the fact that, as the accused party, Gray had every reason to lie.

This case is significant in that the retaliatory animus of a non-supervisory employee was attributed to the employer. The takeaway for employers is that any investigation of discrimination or harassment must be handled carefully and even-handedly. It should not be an exercise in merely going through the motions and papering the file. Before accepting one party’s version of disputed facts, the employer must conduct a meaningful examination of the evidence and consider each party’s credibility and motives. PMP’s HR professionals and staff attorneys can provide assistance in this regard, or even conduct the investigation for you.  The experienced HR Consultants at PMP can customize a harassment/discrimination/retaliation prevention training for your staff.

The next time you receive a complaint of sexual harassment or discrimination, tread carefully and keep a cool head. Don’t get your paw burned in the fire.


Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding retaliation. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance. Contact us at 800-921-2195 or 516-921-3400. You can also visit our website or e-mail us at

This article is intended for general information only and should not be construed as legal advice.


Posted in Uncategorized | Tagged , , , , , , , | Leave a comment

EEOC Pay Data Collection: Get Ready, Here It Comes

On September 29, 2016, the EEOC announced that starting on March 31, 2018, certain employers will be required to submit employee pay data to the agency. The data will be used by the EEOC to combat pay discrimination.

The new requirement will apply to private employers, including federal contractors and subcontractors, with 100 or more employees. These employers will be required to report aggregate W-2 income of their employees broken down by sex, race, ethnicity, and job group. Employers will not be asked to report individual salaries or any personally identifiable information of employees.

The EEOC says that collecting pay data will enable it to spot pay disparities indicative of unlawful discrimination. Critics say the use of W2 data for this purpose is an oversimplified approach, failing to take into account work experience, job responsibilities, an employee’s choice to take on overtime work, and other nondiscriminatory factors that may affect pay. Further, many employers have expressed concern over the significant burden the new reporting requirements will place on them, both in terms of cost and time spent.

Although the new requirements will not go into effect for another 18 months, employers should begin preparing for the changes without delay. A first step would be to conduct a rigorous internal review of compensation practices and W2 data to look for any appearance of discrimination that could be rectified before the March 31, 2018 deadline. Companies should also begin preparing for the administrative aspect of the new requirements, by planning who will be involved in the reporting process and what systems will be used.

The EEOC’s requirements are bound to cause major headaches for affected employers. For guidance on preparing and complying with these requirements, or to schedule a compliance audit focusing on your pay data, please contact one of the HR consultants at PMP.


Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding pay data collection. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance. Sign up for our Fall 2016 Compliance Workshop Series or contact us at 800-921-2195 or 516-921-3400. You can also visit our website or e-mail us at

This article is intended for general information only and should not be construed as legal advice.


Posted in Uncategorized | Tagged , , , , , , , , | Leave a comment

Use of Social Media in the Recruiting and Hiring Process

Social media is ubiquitous in today’s world. Chances are, your company has used it in recruiting or candidate screening at one time or another, whether by checking out a candidate’s LinkedIn, Facebook or Twitter profile, or by using social media to post a job listing. These methods can help employers access qualified candidates and can provide useful information about applicants. For example, you might learn about a candidate’s work experience, communication skills, volunteer work, or professional passions. You might also discover negative information about the applicant. For instance, you might learn about illegal activities, threats of violence, or disparagement of past employers.

But using social media in recruiting and hiring is not without risk. By reviewing a candidate’s online postings, you may find information that cannot legally be considered in the hiring process. For example, you may learn a candidate’s race, ethnicity, disability, marital status, age or religion. Once you know such information, you are vulnerable to being accused of using it in your hiring decisions.

While these risks are very real, an employer who is careful and conscientious in its use of social media may be able to reduce them. One way to diminish risk is to check social media only after a candidate has been interviewed, rather than using it as a way to screen candidates sight-unseen. Another way is to have someone in the company who is not involved in hiring decisions be in charge of viewing social media content of job candidates and filtering out any information about protected characteristics (e.g., race, age, disability, etc.) before sending other information on to HR or the hiring manager. Also, an employer should never ask an applicant for his password or username information, or try to “friend” him or otherwise join his social network. A number of states have statutes prohibiting this conduct, and refraining from it is best practice in all states.

There is no foolproof method for removing all risk from the use of social media in the hiring process. Whether the benefits of using it may outweigh the risks, and how to minimize that risk, will likely depend on the circumstances. Feel free to contact PMP if you would like to speak to an HR consultant or staff attorney about how best to navigate these waters successfully.  Sign up for our educational workshop, Risk and Reward: The Dangers of Social Media in the Workplace on Wednesday, December 14, 2016.

Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding use of social media in the workplace. Please keep in mind that in addition to our staff of seasoned HR consultants, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance. Contact us at 800-921-2195 or 516-921-3400. You can also e-mail us at

Posted in Uncategorized | Tagged , , , , , , , | Leave a comment

Considering a Job Candidate’s Salary History: Soon to Be a Thing of the Past?

When deciding whether to make a job offer to a candidate and, if so, how much to offer in salary, employers commonly ask the candidate for his or her current salary and/or salary history. This has long been an accepted practice. But in one state, Massachusetts, it is now illegal.

In August, Massachusetts became the first state to prohibit employers from asking prospective employees about their salary history until after they make a job offer that includes a proposed salary amount. The rationale behind the law is that basing salary offers on a candidate’s salary history perpetuates pay disparities based on gender. If a female employee was paid less than her male counterparts at her last job, and her next employer bases her new salary on what she was paid at that job, the employee will be trapped in a cycle of pay inequality that may continue throughout her career.

Following Massachusetts’ lead, a group of Congressional legislators have announced plans to introduce a bill prohibiting employers from asking applicants for their salary history before making an offer. Whether that bill will become law, or whether similar laws will be enacted at the state level outside of Massachusetts, remains to be seen. For now, employers should be sure to keep this issue on their radar and stay tuned!


Posted in Uncategorized | Tagged , , , , , , , , | Leave a comment

Job Posting Do’s and Don’ts

Writing a job posting seems like a fairly straightforward task. You describe the position and the qualifications needed, click “post,” and wait for the resumes to roll in, right?

If only writing job postings were that easy! In reality, crafting a job posting that is effective and targeted, substantive but not overly long, and free of legal snafus is no easy feat.  This is especially true at smaller companies, where the person writing the job posting likely does not devote a large percentage of his or her time on recruitment.

To assist employers who find themselves floundering when faced with this task, PMP has created a brief list of “do’s and don’ts”:

  • DO think about the qualifications that are actually needed for the job, and tailor the job posting accordingly. Each qualification listed should have a legitimate relationship to the job, so that the employer could defend the list in the event that an applicant claimed it was discriminatory against a particular group.
  • DON’T use gender-specific pronouns or euphemisms for a certain gender, age, or physical condition. For example, don’t say you are looking for “hot waitresses” or “recent college graduates.” If a bona fide job qualification that touches on protected characteristics exists, state it precisely. For example, “must be able to lift 50 pounds” may be an actual requirement for the position; being “in good health” should not be.
  • DON’T bury important information at the bottom of the posting. Some candidates will focus on the first part of a job listing and not absorb all the information in a long list of job requirements. This may result in your office being flooded with resumes from unqualified candidates. Place any essential qualifications front and center in your job description.
  • DO include a statement that the company is an equal opportunity employer.
  • DO show what sets your company apart from the competition, whether it is your competitive salaries, stand-out benefits package, unique culture, or achievements in the industry.

Even for a seasoned recruiter, an effective job posting is not something that can be dashed off in a hurry. It requires careful thought and consideration. But when done properly, it can yield invaluable results. When you find a steady stream of qualified applicants at your doorstep (or in your inbox), you will be glad you took the time to do it right.

Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding your job postings, job descriptions, and recruiting practices.  Check out our upcoming workshop, Strategic Job Descriptions: Minimize Liability and Maximize Productivity on Wednesday, November 2, 2016.   In addition to our staff of seasoned HR consultants, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website or e-mail us at

Posted in Uncategorized | Tagged , , , , , , | Leave a comment

Your Sexual Harassment Policy May Not Be Effective!

Do you believe your company’s sexual harassment policies sufficiently insulate the company from liability for harassment? Do you assume that, at the very least, this would be true in the event that an employee is sexually harassed but does not report it? Many HR professionals and employment lawyers would likely agree with you. But a recent Fifth Circuit Court of Appeals decision indicates that employers may not be as secure as they think they are when it comes to unreported sexual harassment.

The plaintiff in the case was Kandace Pullen, who was a temporary clerical employee for a school district in Louisiana. During her employment, Pullen alleges, she was sexually harassed by her supervisor, Timothy Graham. Pullen did not report the harassment while it was happening. In fact, she made no mention of it until about two years later, when she was questioned during the school district’s investigation of a complaint made by another employee, Aimee Harris, that Graham had harassed her (Harris). The investigation of Harris’ complaint was conducted months after Pullen’s employment with the district had ended. It was at this time that Pullen filed an EEOC charge alleging, for the first time, that she had been harassed by Graham during her employment with the district.

Whether an employer will be found liable for sexual harassment depends on several factors. If the harassment is perpetrated by a supervisor and results in action being taken against the employee (such as termination or demotion), the employer will be held strictly liable. But if there is no tangible employment action, the employer can offer a defense to liability. The employer must show that it exercised reasonable care to prevent and correct sexual harassment, and that the employee unreasonably failed to take advantage of preventive or remedial measures offered by the employer. In other words, if the employer has an anti-sexual harassment policy with clear complaint procedures for employees who are harassed, and an employee fails to utilize that procedure before suing the employer, the employer will generally not be held liable.

In the Pullen case, the lower court applied that very analysis. The court granted summary judgment to the school district, effectively throwing plaintiff’s case out, because Pullen had not reported the harassment despite the fact that the district’s harassment policy was posted on bulletin boards in the office and available online. The district even provided regular sexual harassment training to the majority of its employees.
The Court of Appeals, however, viewed things differently. The appellate court noted that Pullen, as a temporary employee, had never been given sexual harassment training, and that she alleged she had not even known that the district had a sexual harassment policy at all. Pullen claimed she had never noticed the copies of the policy posted on bulletin boards, and she offered evidence that other employees working in the same office were equally unaware of the policy. Finding that this evidence “generates a reasonable inference that the policy was not posted in a conspicuous location,” the appellate court reversed the district court’s decision. In support, the court cited similar decisions from the First Circuit and Tenth Circuit Courts of Appeals.

What does this mean for employers? It means they should not allow themselves to become complacent about their sexual harassment policies, including the manner in which those policies are distributed. It is not enough simply to have a policy in place; employees must be made aware of the policy. Moreover, employers should be prepared to offer evidence of that awareness. This means that having each employee sign an acknowledgement of his/her receipt of the employee handbook is more important than ever. Equally important is making sure the sexual harassment policy contained in the handbook is clearly communicated and can be easily understood. Relying on bulletin boards to get the word out, or even posting the policy online, is not enough, as the school district in the Pullen case found out. Moreover, temporary or seasonal employees should not be excluded from the process; it is the employer’s responsibility to ensure that all employees become familiar with the policies.

Ultimately, an employer’s focus should not solely be, “How can we avoid liability?” but, rather, “How can we keep harassment from happening and how we put a stop to it and help the victim if it does happen?” Asking these questions and doing the work they require will help keep companies on track toward having meaningful, accessible anti-harassment policies.

This article is intended for general information only and should not be construed as legal advice.

Posted in Uncategorized | Tagged , , , , , , | Leave a comment

Exit Interviews: Are You Using Them To Their Full Advantage?

Is your company getting all it can out of exit interviews? Exit interviews can yield gold mines of information for employers. But if not conducted properly, they can be a useless, formulaic exercise that benefits neither the company nor the outgoing employee.

The stories of two different employees will help illustrate this. Amy left her job at XYZ Company for a new position because her boss, Mike, was a verbally abusive bully. Amy had never complained about Mike because she feared retaliation. As her last day approached, she considered telling HR everything in her exit interview – all the abusive comments, unreasonable demands, and temper tantrums she had endured while working for Mike. But she knew Mike would be involved if a future employer asked for a reference. She had been at XYZ for five years and could not afford to jeopardize the positive reference she had earned from her good work. Besides, she figured management already knew what Mike was like anyway. Wasn’t it general knowledge at XYZ? So Amy decided, rather than burn bridges, to remain silent about Mike. In her exit interview, she said she was leaving only because she got an offer for a position with a higher salary. The interviewer accepted this response and asked no further questions.

Tim also reported to Mike at XYZ and was a victim of his bullying. When Tim left for a new job, he saw his exit interview as an opportunity to vent about the years of abuse he had suffered at the hands of Mike. When asked his reason for leaving the company, Mike launched into a detailed, 30-minute account of Mike’s behavior toward him and others. He even brought along copies of emails that substantiated his report. After Tim’s exit interview, HR immediately began an investigation of Mike. It revealed that numerous employees had had similar experiences with him, and it ended in Mike’s termination.

As these stories show, exit interviews can be a source of important information, or they can be a lost opportunity.

The benefits of a well-conducted exit interview are many. You can learn about systemic problems within the company, reasons for low morale, problems with supervisors, and much more. The information gleaned from an exit interview can help a company increase employee retention and may even reduce the risk of lawsuits (particularly if the interview reveals issues with a supervisor that were previously unknown to management and the supervisor can be removed before causing more harm).

So how can you get the most out of exit interviews?  First, if your company has an HR department, put HR in charge of conducting the interviews. Employees should not be interviewed by their boss but by someone who is, at least ostensibly, neutral. Second, if feasible, promise anonymity and confidentiality of responses. However, if your company is small this may not be realistic. When a small company chooses to act upon information obtained from the interview, such as by investigating allegations made, the source of the information may be obvious to everyone there — including the target of the investigation. Third, consider having a company-wide policy of limiting references to confirmation of job title and dates of employment. This will allow you to assure outgoing employees that the information they provide in their exit interviews will not affect their references, since the company does not provide substantive references.  Fourth, and perhaps most importantly, convey to employees that you are truly interested in what they have to say. Do not conduct the interview in a manner that suggests you are just going down a list of questions and checking off boxes. Engage the employee; draw him or her out. Remember, a disgruntled employee, even one who is reluctant to go into detail at first, has probably fantasized many times about venting his frustrations. Give him the gentle nudge he needs to do so.

If employees can feel confident that the information they provide will be treated with sensitivity, and will not negatively affect future job references, they will be more forthcoming in their exit interviews. As a result, management will be able to access information that otherwise would never have been brought to its attention about what is really happening inside the company.

The HR consultants and staff attorneys at PMP are experienced professionals  committed to providing clients with practical guidance on all aspects of the employer/employee relationship.  For tips on how to conduct effective exit interviews, contact a HR consultant at PMP today, 800-921-2195 or 516-921-3400. You can also e-mail us at


This article is intended for general information only and should not be construed as legal advice.


Posted in Uncategorized | Tagged , , , , , , | Leave a comment