Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Before you fire that political extremist . . .

Posted in Discrimination, Harassment, HR, Politics, Public Sector Employment, Social media, Wrongful Discharge

If you’re a private sector employer, you can generally fire an at-will employee for his or her political beliefs or expression. The First Amendment, as we discussed last week, does not limit you. Depending on where you are, there may be state or local laws protecting employees from discrimination based on their political beliefs or activities, but those jurisdictions are the exception, not the rule.

And, of course, there may be very good reasons to terminate an employee based on extremist political beliefs. Imagine a member of the Aryan Brotherhood who has Jewish co-workers. Will that have an impact on the co-workers’ workplace experience? Maybe not, if he behaves professionally at work and keeps his affiliation secret, but it certainly has the potential to spill over into the workplace and create a hostile environment for his co-workers.

(True story: Many years ago, I was co-counsel in a sexual harassment lawsuit in North Carolina. An African-American male supervisor allegedly flirted with the white plaintiff in mild ways — for example, by telling her she looked nice and calling her “honey.” After she complained, the supervisor was disciplined. The plaintiff sued the company because the supervisor wasn’t fired. In her deposition, she testified that the supervisor’s behavior would have been no big deal if he’d been white, but it bothered her because he was black. We were able to get her lawsuit dismissed, arguing that if we fired him based on her race-based complaint, we would have been unlawfully discriminating against him. After it was all over, we heard that she was a member of the Ku Klux Klan, which explained a lot. If only we’d known earlier . . .)

So, yes, you can and sometimes should take action against employees based on their affiliation with extremist hate groups. But, as always, employers — even if they’re non-union and in the private sector — should aspire to be fair to everyone involved, or at least as fair as possible under the circumstances. Here are questions that every employer should ask itself before making a final decision to terminate an employee based on his or her political beliefs or activity:

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Weekly catch-up

Posted in HR, Wage-Hour

The state of Oregon is the first in the Union to have a statewide “scheduling law.” The new law will take effect (for the most part) on July 1, 2018, and will apply to retail, hospitality, and food services employers with operations in Oregon, as long as they have at least 500 employees worldwide. Bob Ortbals, who has been following and covering municipal scheduling laws, has an excellent summary of the legislation here.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

NC “employee classification” law warrants caution but doesn’t change substantive law

Posted in Contingent Workers, Independent Contractor, Unemployment, Wage-Hour, Workers' Compensation

On August 11, Gov. Roy Cooper signed into law the North Carolina Employee Fair Classification Act. The portion of the legislation that deals with worker classifications will take effect December 31.

The legislation does not change existing definitions of “employee” and “independent contractor” under state law but creates an Employee Classification Section of the North Carolina Industrial Commission, which will be empowered to receive and investigate reports of worker misclassification, and to provide for information sharing among various state agencies, including the Department of Labor, the Division of Employment Security, the Department of Revenue, and the Industrial Commission.

In short, the law provides a mechanism for workers to make complaints and may make it easier for affected state agencies to pursue employers who misclassify their workers.

State licensing boards will be required to ask applicants to disclose any investigations for employee misclassification and the outcome for a period of time to be determined. Failure to comply will result in denial of the license or permit.

Employers will be required to post a notice that includes the following information:

*That workers must be treated as employees unless they are independent contractors.

*That workers who believe they have been misclassified have the right to report the alleged misclassification to the Employee Classification Section.

*The physical and email addresses and telephone number where alleged misclassifications can be reported.

The classification provisions apply to “employees” as defined in the North Carolina Wage and Hour Act, the Employment Security Act, the Workers’ Compensation Act, and Chapter 105 of the General Statutes (Taxation).

Elsewhere, the legislation also authorizes the Industrial Commission to adopt guidelines for the use of opioids and pain management treatment for compensable workplace injuries and illnesses.

Image Credit: From flickr, Creative Commons license, by orionpozo.

Q and A on the recent controversy

Posted in Affirmative Action, Corporate Culture, First Amendment, HR, Labor Relations, Protected Concerted Activity, Retaliation

On the recent uproar involving a major, major employer and its recently-terminated employee:

No. 1. Is it a good idea to provide an “open forum” to employees if there are certain topics that are off limits? No. If you want to provide a forum for employees to speak up, but only “within reason,” then it’s a good idea to establish and communicate your limits in advance. That way, if someone crosses the line and has to suffer consequences, at least you provided fair warning.

That said, regarding this particular case, it is not clear to me that the communication was made on such a “forum.” In a recent video interview, accessible here, the employee indicated that he wrote the memo about a month ago while en route to China and shared it with a few co-workers. That doesn’t sound to me like a “forum” communication. But elsewhere, I’ve read that it was communicated through established company channels. (I’m still unclear on how the memo was ultimately leaked to Motherboard and then published on Gizmodo.)

No. 2. What if an employee communicates “politically incorrect” views that conflict with the employer’s corporate philosophy? If the employee is not a member of management, and assuming the communication is made in a constructive manner, then I would love to see employers welcome it as an opportunity for dialogue rather than consider it ground for termination. The company could reiterate and explain the rationale for the corporate philosophy, or even provide a civil and reasoned rebuttal to the employee’s views.

(If the views are expressed by someone from the supervisor level on up, then they should be expressed in a way that doesn’t jeopardize the company’s legal position. Arguably, any member of management is legally “the company.”)

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Weekly catch-up

Posted in Immigration, Politics, Pregnancy

President Trump endorses the RAISE Act, which would clamp down on legal immigration. The RAISE Act legislation, among other things, would give immigration priority according to a skills-based “points” system and to individuals who speak English. If enacted in its current form, it would be expected to reduce legal immigration to the United States by about 50 percent. Will Krasnow of our Boston Office has an excellent summary here.

Massachusetts will require pregnancy accommodation starting next April. The state’s new Pregnant Workers Fairness Act was signed into law on July 27 with bipartisan support. Among other things, employers will be expected to engage in the “interactive process” with pregnant workers who request accommodation, and to consider providing accommodations similar to those that apply in the context of the Americans with Disabilities Act. Connor Cobean of our Boston Office and office head Ellen Kearns have the details here.

PS – A big thank you to the Boston Office for going above and beyond the call of duty with these updates!

Image Credit: From flickr, Creative Commons license, by Jelene Morris. 

Does DOJ action on “race-conscious” college admissions mean anything for federal contractors?

Posted in Affirmative Action

Since the beginning of the Trump Administration, business owners, employers, and employees alike have been waiting to see what the effects on social policy will be. Of particular interest to employers, and especially federal contractors, is whether the Administration will bring about a more conservative approach to enforcement in the employment arena, including equal employment opportunity and affirmative action.

We are now eight months in, and so far the employment law changes have come in a slow trickle, if at all. Meanwhile, it is often helpful to look for signals outside the employment arena.

One such area to watch right now is the U.S. Department of Justice and affirmative action programs in colleges and universities.

Last week, The New York Times reported that the Department of Justice was investigating claims of discrimination against Caucasians in the admissions process at Harvard University. According to the article, this was the first of many investigations to come for colleges and universities as the DOJ shifts its focus to affirmative action in the admissions process. The next day, the Times corrected itself and clarified that the investigation will focus on discrimination against Asian-Americans.

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Employer loses defense to EEOC suit because it didn’t preserve records

Posted in Documentation

Just a quick reminder to employers to PRESERVE THEIR RECORDS when litigation is not only pending but also threatened.

If you wait until the sheriff serves you with a summons and complaint, you may have waited too long. “Threatened” includes getting a demand letter from an attorney, or receiving an administrative charge or complaint, or any reasonably objective indication that legal action may be coming. The records should be retained from the first “threat” until the dispute reaches a final conclusion: (1) settlement, or (2) determination by a court or agency, plus the expiration of all avenues for appeal.

The Equal Employment Opportunity Commission was investigating charges that JBS Swift & Company refused to allow prayer breaks for Muslim employees at a meatpacking facility in Colorado. Among other defenses, JBS claimed that granting the prayer breaks would be an undue hardship because it would result in unacceptable work slowdowns. The EEOC requested certain production records that might have shown whether the slowdowns were occurring, the severity of the slowdowns, and whether any slowdowns were arguably attributable to prayer breaks.

During the EEOC charge phase, JBS produced only a small subset of the records that had once existed.

The EEOC filed suit, and again requested those records. JBS produced some more, but far from what the EEOC had asked for.

Last week, a federal judge ruled that JBS would not be allowed to assert its “work slowdown” defense because of its failure to preserve the records or provide them to the EEOC.

‘Nuff said?

Employer Beware: Bad “optics” create hostile work environment?

Posted in Harassment, Sexual Torts

Yesterday, I posted about a disability discrimination case that the employer did not really screw up. Even so, a few less-than-optimal moves resulted in an adverse jury verdict that was upheld on appeal.

In Chapter 2 of our series on “employers who didn’t really screw up but still lost” is a sexual harassment case that bothers me, involving the Idaho Department of Corrections. Here’s the story:

The plaintiff, Cynthia Fuller, was in a secret consensual relationship with co-worker Herbt Cruz. While they were in that relationship, the state police began investigating Mr. Cruz in connection with an alleged rape of another woman. The IDOC put Mr. Cruz on paid administrative leave pending the outcome of the investigation. A communication was sent to employees about Mr. Cruz’s leave status and a “hope[] that he returns soon.”

The day after an IDOC manager told employees that Mr. Cruz was on leave, Ms. Fuller disclosed her relationship with Mr. Cruz. The relationship continued for about two more months, and then Mr. Cruz allegedly raped Ms. Fuller three times, over a period of about two weeks. All of the rapes took place outside the workplace.

A few days after Ms. Fuller’s third rape, a co-worker reported to the IDOC manager that Ms. Fuller had been raped by Mr. Cruz. When the manager asked Ms. Fuller about it, she confirmed it. The manager took Ms. Fuller to the Sheriff’s Department and stayed with her while she spoke with detectives. He also told Ms. Fuller that Mr. Cruz “had a history of this kind of behavior and that he knew of several instances.” The next day, Ms. Fuller obtained a civil protective order against Mr. Cruz, and the manager sent an email to staff, including Ms. Fuller, which said,

Just an update on Cruz. I talked to him. He sounds rather down, as to be expected. . . . Just as a reminder — and this is always one thing I hate about these things — he cannot come to the office until the investigation is complete. Nor can he talk to anyone in the Department about the investigation. So, if you want to talk to him, give him some encouragement etc., please feel free. Just don’t talk about the investigation. At this point, I honestly don’t know the status of it.

(Ellipsis in court decision.)

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Bummer. NLRB Chairman Miscimarra is leaving in December

Posted in Labor Relations, Politics


Bloomberg BNA reported last night that Philip Miscimarra, Chairman of the National Labor Relations Board and a voice of reason, will be leaving when his term expires on December 16 of this year.

Chairman Miscimarra said that he had been asked to stay for another term but decided not to because he had three kids going to college. Reading between the lines (not very difficult in this context), I think he’s saying he’ll have a much easier time paying for his kids’ college if he works in private practice than he’d have staying in his government job.

As most of our readers know, Chairman Miscimarra was a breath of fresh air on the Board. During the last years of the Obama Administration (and, actually, until last week), he was the only Republican and wrote vigorous dissents to some of the extreme positions that were taken by the Obama Board.

After President Trump took office, the President named Mr. Miscimarra to be Acting Chairman of the NLRB, replacing now-Member Mark Gaston Pearce, and then appointed him Chairman.

Last week, the President’s first new Board nominee, Marvin Kaplan, was confirmed by the Senate. The President’s other nominee, William Emanuel, will be voted on after the Senate’s August recess and is expected to be confirmed. But now the President will have to be thinking about someone to fill Chairman Miscimarra’s very big shoes.


Image Credit: From flickr, Creative Commons license, by Mary Penny.

Employer Beware: When “good” isn’t good enough (disability bias)

Posted in Americans with Disabilities Act

Two court decisions came out last week that ought to scare the heck out of employers.

Both involved employers who seem to have been aware of their legal obligations and tried to comply. The employers lost their cases because they either didn’t go far enough, or didn’t pay enough attention to “optics.”

I’d like to talk about each of these cases in two separate blog posts. The next time you want to fire someone, and your lawyer sends you back to ask a few more questions or do a few more things, you’ll understand why.

Today’s case is the “good, but not good enough” case. Stragapede v. City of Evanston involved disability discrimination under the Americans with Disabilities Act. Mr. Stragapede had been a water worker for the City of Evanston, Illinois, for 14 years when he had a traumatic brain injury (not work-related). He was on medical leave for about nine months. When he was ready to return to work, the City sent him for a fitness-for-duty examination, and the City’s doctor referred him to a neurologist for evaluation. The neurologist said he could probably return to work but recommended a brief “work trial” first. The City complied, and Mr. Stragapede passed the work trial. He returned to full-time duty and did fine for about two weeks.

(Ominous music here.)

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