The EEOC and Mission Creep: CVS

 The EEOC issued a press release announcing that it had filed a pattern and practice suit against CVS because of its use of an "overly broad" severance agreement which interferes with the employee's rights to file a charge or to communicate with the EEOC. The regional attorney referred to the agreement as an effort to buy employees' silence about potential violations. Pretty serious stuff. So is the suit based on specific instances where CVS in fact tried to intimidate employees who signed such agreements?  No, it is based on the existence of the agreement and not its application.

There is no allegation in the complaint that CVS sought to use the agreement in the manner which the EEOC contends would "chill' employee rights. The complaint notes that the agreement is a five page single spaced document. While the complaint alleges that 650 employees have entered into the agreement, there is no allegation concerning any of these employees being prevented from exercising any statutory rights. By using the agreement, CVS has intended to deny the full exercise of Title VII rights. The EEOC acknowledged that the agreement contained a single qualifying line stating that nothing in the agreement was meant to interfere with an employee's right to participate in any legal proceeding or to cooperate with an agency's investigation.

The Chicago region is apparently taking the lead in establishing a position through litigation. The region engaged in an similar effort in 2011 when it sued and then entered into consent decrees with SUPERVALU and Jewel Food Stores concerning automatic termination of leave without returning employees to work to see if an accommodation could be achieved. The CVS action is based on the mere maintenance of an agreement whose language did not explicitly say what the complaint alleges and not on any specific act. The EEOC appears to joining the NLRB is scrutinizing employer language and finding that the lack of specific language virtually always creates ambiguity and impedes the ability to exercise statutory rights.
 
Jon Hyman identified in his blog the response that employers should consider in light of the CVS litigation. The NLRB and now the EEOC are finding that the absence of specific language concerning the rights of employees under the respective statutes is a violation because of the potential chilling effect. Employers are now going to have to seriously consider more expansive language with respect to how certain policies and procedure do not impact employee rights. No one wants to be the test case; no one wants to spend the time and money over something that can easily be avoided.

The EEOC is advancing its agenda through litigation. The district director stated in the press release the agency's most recent Strategic Enforcement Plan identified preserving access to the legal system as one of the six strategic enforcement policies. Fair enough. What is troubling is that rather that using a specific instances where access has been denied through employer action , the agency has decided to act preemptively. It will attempt to get a settlement and a consent decree and then use this as leverage with other employers.

 For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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