Thursday, February 24, 2011
Monday, February 21, 2011
• Wrongful termination
If you live in Arizona or Montana, your employer can only fire you for just cause. Otherwise, they can fire you for any reason or no reason at all. They don’t have to have a good reason. They don’t even have to give a reason. Wisconsin has a "narrow exception" for wrongful terminations that requires a clearly defined policy to be identified. Most calls and emails I receive are from people who believe their termination is "wrongful." Very rarely does one have what I consider to be a wrongful termination, but some are actionable under other statutes, so it never hurts to run your case by an employment attorney!
• Right to your file
No federal law requires private employers to allow employees to inspect or copy their own personnel files. Some states require employers to allow you to look at your file. Fewer allow you to copy items in your file. Many times, the only way you’ll find out what’s in your file is if you sue and you get it with a Request for Production, or if you subpoena it in unemployment or other proceedings. Wisconsin actually has a statute that requires employers, upon written request, to allow employees to review their file twice per year.
No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority. No law requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks.
• Hostile environment/harassment
Hostile work environment is not illegal. Harassment is not illegal. Bullying is not illegal. Hostile work environment or harassment due to race, age, sex, religion, national origin, disability, color, taking Family and Medical Leave, whistleblowing, or some other legally-protected status is illegal. That is, you need to base your "hostile work environment" or "harassment" upon your belonging to what is called a "protected class."
• Free speech
Only government employees have free speech protections, and those are very limited. You can be fired for your speech in the workplace or outside the workplace if you work for a private employer. You can't be fired for speaking on behalf of coworkers in order to improve work conditions or for objecting to something illegal, but be very careful to make sure you're protected before you speak out.
There is no law giving you privacy in your work emails or internet usage. If your employer is going to listen into or record phone calls, there are legal restrictions. You also have privacy rights in your medical information. There is no federal law protecting your social security number, but California and New York do offer limited protection against employers displaying your number.
• Right to work
Right to work doesn’t mean your employer can’t make you sign a non-compete agreement or restrict your ability to work for competitors after you leave. What it means is they can’t make you join a union in order to work there. Some states, but not all, are right to work states. If your company tells you that signing a noncompete agreement is meaningless or that it won’t be enforced, they are lying to you. Wisconsin is not a right to work state.
There is no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. Examples would be objecting to discrimination, making a worker’s comp claim, or taking Family and Medical Leave.
Discriminating against you for being you is never illegal. Favoritism, nepotism, being a jerk, are not illegal. Discrimination based on age, race, sex, religion, national origin, disability, color and genetic information are illegal.
• Individual liability
As much as it may give you joy to sue your boss personally, you probably can’t. Discrimination laws, Family and Medical Leave Act, and most other laws simply don’t allow it. The one exception is wage and hour violations. But what’s the point? Unless they’re rich, you probably won’t be able to collect anyhow.
Often times it is not pleasant to be the bearer of bad news to someone who just lost their job but as a plaintiff attorney, it does no justice to blow smoke and foster false hopes. As I often tell people, what is unfair is not always illegal.
1-It screams to the employee "I don't trust you." Sure, there are some employees you don't trust, but why treat them all like abusers? Even employees who use a lot of sick time or paid time off may have legitimate reasons -- they may have genuine chronic health problems, or they may have young kids who get sick (my sons are grown now, but I certainly remember the days when our family was a veritable tag team of illness), or they may have been incredibly unlucky, or they may be expectant mothers with morning sickness.
2-It is a hassle to the employee and may actually retard recovery. I may legitimately have a miserable cold or sore throat, and I may get over it in 24 hours if I can sleep it off. But if I have to waste half of my sick day driving my sorry body over to the nearest walk-in clinic, waiting 2-3 hours with other sick, contagious people, to see a doctor who prescribes (surprise!) bed rest, and driving my sorry body back home, I may not get over it quite so quickly.
3-It is a hassle to our poor, overburdened health care providers. It's bad enough that these poor souls have to deal with the FMLA and HIPAA privacy, and now try to make some sense out of the "safe harbor" language under the Genetic Information Non-Discrimination Act. Do we really need to add to their grief by requiring them to see patients who are sick with illnesses that nothing can be done about anyway?
4-It is a hassle to HR and supervisors. Even though having employees out sick is a hassle, it is also an administrative hassle to parse every single request for a sick day.
5-It encourages sick, infectious people to come to work and make everyone else sick. 'Nuff said.
On the other hand, employers may want to request doctor's notes when there is good reason to be suspicious of a request for sick time. For example, if your employee is a teacher in the Madison, Wisconsin, public school system, you might want to ask for a doctor's note.
It's always nice to see defense counsel advising employers to do good things even though doing the opposite may not always be actionable in the legal system. Refreshing.
Because Collins works for a public sector employer, he has certain Constitutional protections that a private sector employee does not--hence why the ACLU, which handles Bill of Rights issues, is involved. Specifically, the ACLU believes this policy may violate both the Federal Stored Communications Act and Maryland state law, which protect privacy rights and extend protections to electronic communications. However, as DiBianca points out, whether public or private, such a policy is plain bad policy.
Thursday, February 17, 2011
What was deficient in the complaint? Well, the court said that even though a prima facie case of age discrimination need not be plead, courts use it as a "guidepost" to see if the claims have provided defendant with "fair notice" of her claim. And in this case, the court said that she "has not, and cannot show that she was fired under circumstances giving rise to an inference of discriminatory intent".
The court did say that such circumstances can be found in:
•"employer criticisms of the plaintiff's performance using degrading, age-related terms,
•invidious comments about others in the employee's protected group,
•the transferring of plaintiff's duties to younger employees,
•more favorable treatment of employees not in the protected group,
•the sequence of events leading to plaintiff's discharge,
•or the termination of two out of three older employees but no younger employees"
(In doing so, the court has essentially created a road map for bringing an age discrimination claim that will survive a motion to dismiss.)
In this case, the court said that evidence that women 20 years younger than her were promoted to positions over her had no relevance in the absence of the plaintiff seeking such promotions as well.
She also alleged that as part of a reduction in force, she was in the top five in terms of age and one of five employees over 40 years old terminated (out of 8 total individuals). That too was not enough, particularly because she hadn't alleged that she was replaced by someone younger.
Before employers rejoice too much, however, the court did allow a claim of retaliation under the whistleblower provisions of the Sarbanes-Oxley act to survive the motion. So the case will march on.
As Professor Sullivan pointed out in his article and what probably would have saved the plaintiff in this case, employment suits in the aftermath of Twombly and Iqbal require something a little extra until the issue is finally cleared up by the Supreme Court. That something extra according to Professor Sullivan is 1) pleading a prima facie case of discrimination under the traditional McDonnell Douglas standard, 2) by pleading "direct evidence" of discrimination, 3) pleading the existence of a comparator whose more favorable treatment than plaintiff may make the claim of discrimination plausible or 4) plead the existence of social science research showing the pervasiveness of discrimination. Perhaps the plaintiff in the above-referenced case may take leave of court to amend their complaint pursuant to FRCP Rule 15...? Let's sharpen our complaints, plaintiff attorneys!
Wednesday, February 16, 2011
None of the funds made available by this Act may be used to pay the salaries and expenses of personnel to carry out and implement the National Labor Relations Act (29 U.S.C. 151 et seq.).
Scary times indeed!
The case is Terwilliger vs. Howard Memorial Hospital et al., Case No. 09-CV-4055.
Hat tip: FMLA Insights
Tuesday, February 15, 2011
From the press release on the meeting:
The meeting agenda includes:
Panel 1: U.S. Department of Labor’s Latest Unemployment Data
•William E. Spriggs, Assistant Secretary for Policy, U.S. Department of Labor
Panel 2: Unemployment Status Screening
•Christine Owens, Executive Director, National Employment Law Project (NELP)
•Fernan R. Cepero, Vice President for Human Resources, The YMCA of Greater Rochester, representing SHRM
•Amy Dias, Partner, Jones Day
•Helen Norton, Professor, University of Colorado Law School
Panel 3: Impact on Unemployed Persons
•Fatima Goss Graves, Vice President for Education and Employment, National Women’s Law Center
•Algernon Austin, Director of the Race, Ethnicity, and the Economy Program, Economic Policy Institute
•Joyce Bender, CEO, Bender Consulting Services
A brief question-and-answer session with EEOC Commissioners will follow each panel discussion.
Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room.
The Commission agenda is subject to revision. Additional information about the hearing, when available, will be posted at http://www.eeoc.gov/eeoc/meetings/index.cfm.
The issue of employers discriminating against the unemployed came to the fore in recent months as many job postings were requiring that applicants be currently employed or otherwise explicitly telling unemployed individuals not to apply. However, just as with credit history discrimination which is also not protected under any federal statute and most state statutes, it may be shown that such policies have a disparate impact on minorities as they may be more likely to be affected by such application policies.
Thursday, February 10, 2011
Fortunately or unfortunately, not all upsetting or even mean-spirited conduct in the workplace is actionable. In the absence of an employee’s membership in a protected class, participation in a protected activity, or a clear public policy that prohibits the employer’s conduct, an employee cannot maintain a claim for harassment merely because his employment has become unpleasant or undesirable.I always try to explain to people that, as humans, when we have to work side-by-side by others for 8 hours per day or more, 5 days per week or more, until we can retire and issues, tensions and disputes will occur and some people will be easier to get along with than others but that does not mean the law is being violated or that an actionable hostile work environment or harassment is at play. However, just because there are sometimes no viable claims in an employment situation does not mean there is no remedy.
Hat tip: Ohio Employer's Law Blog
In the last several months labor lawyers across the country have been keeping a very close eye on a case filed in Connecticut with the National Labor Relations Board ("NLRB") involving an employee who was terminated for posting critical comments about her employer on her Facebook page. The case was settled this past Monday on the eve of the hearing depriving everyone of a chance to learn whether such conduct is protected concerted activity under Section 7 of the National Labor Relations Act ("NLRA"). However, also this week, we learned that another complaint has been lodged with the NLRB concerning an employer's social media policy and whether it violates Section 8(a)(1) of the NLRA, which covers interference with Section 7 rights.
So, until case law is established, it remains uncertain whether an employee who is fired for posting certain content on Facebook is protected under labor laws. As I have opined previously, I believe such actions are protected if the content of what the employee writes is about workplace conditions and not defamatory. Placing such commentary on the internet, in my opinion, is no different than doing so at the water cooler or in any other manner that has been deemed protected under the NLRA.
Wednesday, February 9, 2011
Tuesday, February 8, 2011
On February 4, the CSEA/SEIU filed an unfair labor practice charge against another Connecticut employer. However, this charge only alleges that the employer violated Section 8(a)(1) of the NLRA merely by "maintaining" policies in its employee handbook, including a policy against:
The use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy.
Monday, February 7, 2011
This case highlights an important lesson in what probability shows and what you can prove in court. Though the plaintiff had a relatively impressive resume that probably should have made her qualified for at least one position with the state in the numerous years and over 100 applications she submitted, she simply was not able to show her previous FMLA claim factored in to a single application she submitted--and maybe it didn't. Perhaps a more clever approach to discovery and a certain type of expert could have saved the day for this plaintiff?
--Feldmann v New York Life Ins. Co., EDMo: Defendant's motions for summary judgment GRANTED. An insurance agent’s claims that an insurance company, New York Life Insurance Co., and a coworker, who conducted a consensual affair with his wife, violated Title VII by creating a hostile work environment for female employees and agents were rejected as the court first found that although the company trained the plaintiff, provided him with benefits, withheld federal taxes from his commissions, and retained the right to terminate his contract at will, when all relevant factors were considered, the balance tipped in favor of a finding that the plaintiff was an independent contractor and not an employee within the meaning of Title VII. Even so, the court, in the alternative, found that even if the plaintiff is considered to be an "employee" and protected under Title VII, his claims still fail because the plaintiff did not engage in an activity protected by Title VII, his employer did not take any adverse action against him, and moreover, there was no causal connection between plaintiff’s participation in the alleged protected activity and his alleged adverse employment action.
--EEOC v Southeast Telecom., Inc, MDTenn: Defendant's motions for summary judgment DENIED. In a case of facts that cannot be denied, a Tennessee district court held that the employer’s actions, which included deactivating the employee’s keyfob, disabling her network and e-mail access, and ultimately terminating her after she reported gender discrimination, were adverse employment actions. Also damning to the employer is that fact the complaint of discrimination was made, the disconnections occurred, and the employee was terminated all within one week give rise to an inference of a causal connection between her complaint and the adverse actions, including, but not limited to, her termination.
Perhaps in light of last week's events Wisconsin will consider some sort of inclement weather legislation?
I'm glad this matter was resolved in a manner that satisfied all parties involved, but I was at the edge of my seat awaiting a decision in this case!
Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.
The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.
Tuesday, February 1, 2011
a) 2 or more employees addressing their employer about improving their working conditions and pay;However, in a recent decision by the Board in Parexel International, LLC and Theresa Neuschafer, Case 5–CA–33245, the Board held that a termination was a preemptive strike to prevent an employee from discussing wage discrepancies with other employees was unlawfully motivated and would restrain/coerce employees in the exercise of their Section 7 rights even though the employee had not discussed or complained to any regular employees about the issue, but had only complained to her supervisor. In finding the employee engaged in protected concerted activity under this rather novel situation, the Board wrote:
b) 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
c) 2 or more employees discussing pay or other work-related issues with each other.
"That conclusion is supported not only by the plain text of Section 8(a)(1), by the policies underlying Sections 7 and 8(a)(1), and by the authorities cited, but it is consistent with other lines of Board precedent holding that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action. For example, an adverse action taken against an employee based on the employer’s belief that the employee engaged in protected concerted activity is unlawful even if the belief was mistaken and the employee did not in fact engage in such activity. [Foot note omitted]. Similarly, a mass discharge undertaken without concern for whether individual employees were engaged in concerted activity—where “some white sheep suffer along with the black”—violates the Act. [Foot note omitted] . What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity."
This is a major victory for employees across the land and could lead to an increase in litigation but it's not exactly easy to prove that an employer terminated an employee to "nip-it-in-the-bud" or feared the employee would subsequently engage in protected activity making it harder to terminate them. Hopefully the end result is employers perhaps taking the time to ease employee concerns over working conditions instead of simply terminating the cause of stir.
David Foley over at LaborRelated has a good illustration of the facts of this case.
Several facts did the plaintiff in in this case and the opinion seems to leave plenty of room for a faith healing event to be protected under FMLA, but definitely not in this case.
--Spencer v World Vision, Inc., No. 08-35532 (9thCir.): Denying discharged employees’ bid for rehearing en banc, the Court of Appeals for the Ninth Circuit filed an amended opinion underscoring its 2-1 decision holding that World Vision, a faith-based humanitarian organization, was exempt from Title VII’s prohibition against religious discrimination. The majority rejected the employees’ contention that the religious exemption was limited to churches and entities similar to churches. Rather, the statute extends the exemption to any “religious corporation, association or society,” observed the majority. Interpreting the statute to require that an organization must be a “church” to qualify for the exemption would discriminate against religious institutions that are “organized for a religious purpose and have sincerely held religious tenets, but are not houses of worship.” The reading put forward by the employees raised serious questions under both the Free Exercise Clause and the Establishment Clause, concluded the majority.
--Vines v Illinois Mun League, 09 C 6978,(NDIll): Defendants' motions for summary judgement against plaintiff's age and sex discrimination claims DENIED. With respect to the age discrimination claim, the court found that both parties offered "materially conflicting" evidence regarding the decision to not "engage" the plaintiff.
With respect to the sex discrimination claim, even though the employer interviewed all males (the plaintiff is male) and ultimately hired a male, because of the 7th Circuit's holding in Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996), which held that there are some limited circumstances where a plaintiff may be able to establish that the employer discriminated against him “without regard to the demographic characteristics of his replacement,” the court also denied summary judgment finding material facts also existed regarding what role sex played in the hiring decision.