3 employer bummers: Veganism a "religion," ADA interactive process fails, and costly severance mistake

Posted by Robin E. Shea on January 04, 2013

A court says veganism might be a "religion" requiring accommodation, a school district gets nailed for failing to engage in the "interactive process" under the Americans with Disabilities Act, and yet another employer makes an avoidable and very expensive mistake with a severance package. Fun and games!

Is veganism a religion? Could be. A federal judge in Ohio has refused to dismiss a religious accommodation claim brought by a customer service representative at a Cincinnati children's hospital. The plaintiff was fired after she refused to get a flu shot on the ground that chicken eggs are used in preparation of flu vaccines and she was a vegan. Therefore, getting the shot would have violated her beliefs. The hospital moved to dismiss her lawsuit for failure to state a claim for which relief may be granted, which required the court to assume that all of the allegations in her lawsuit were true.

Egg.White_chicken_egg.jpgFlu shots are chock-full of this noxious substance.

The judge said that it was possible that the plaintiff's veganism could be a "moral or ethical belief" adhered to with the force of a religious belief, which the Equal Employment Opportunity Commission has said it will treat as entitled to reasonable accommodation under Title VII. In addition, the plaintiff submitted some material indicating a "Biblical basis for veganism," which may have bolstered her contention that her veganism was "religious" in nature or at least held with the same strength as a religious belief. I'm not sure whether this is the material the plaintiff used, but it does provide an example of a "religious" justification for veganism.

The court recognized that the hospital may still be able to prove that it had legitimate patient-safety reasons for insisting that the plaintiff receive a flu shot. But because the hospital filed this motion so early in the process, the court could not rule on that yet. (I've previously expressed my opinion -- spoiler alert: generally negative -- on the wisdom and utility of Rule 12(b)(6) motions to dismiss for failure to state a claim.) Also, because this was a preliminary motion, it is possible that the hospital will later be able to present evidence that the employee's veganism was not, in fact, a "religious" belief, or not sincerely held.

So all is definitely not lost for this employer. The outlook is less rosy for the next two employers I'll discuss.

UPDATE: Three great minds think alike! Eric Meyer of The Employer Handbook blog posted about this case on Friday, as well, and he says in a comment to my post that the "religious" justification that I linked (above) was indeed the one that the plaintiff used. Also, Jeffrey Polsky of California Employment Law points out that the California Court of Appeals took a different view of this issue in 2002. The plaintiff in the California case claimed that his veganism was spiritual in nature and held with the force of a traditional religious belief. The Court of Appeals upheld a demurrer, which is essentially the same thing as a Rule 12(b)(6) motion to dismiss. In other words, the California case, like the Ohio case, was decided early in the proceedings and on the assumption that all of the allegations in the plaintiff's lawsuit were true. Although the California decision had a detailed discussion of federal law, the court was interpreting its state's Fair Employment and Housing Act, and not Title VII.

I will be the featured guest on the DriveThruHR web radio program, Human Resource's #1 Daily Radio, from 1 to 1:30 p.m. Eastern/noon to 12:30 p.m. Central this Thursday, January 10. If you have a few minutes to spare, please tune in!

No interactive process? No summary judgment! A 13-year teaching assistant in a Smart Start early childhood enrichment program in Texas was diagnosed with arthritis in both of her knees. She took a medical leave of absence during the 2009 school year so that she could have surgery on one of her bad knees, and used up all but one day of her leave under the Family and Medical Leave Act. She would not be eligible for more FMLA leave until February 2010. In August 2009, she asked to have approximately 2 1/2 more months off for surgery on the other knee. When told that she had no more FMLA leave available, she (allegedly) proposed working with a cane or walker, or using pain medications, to get to February 2010, when she would be eligible for another leave of absence. According to her evidence, the school district said no to these alternatives and did not engage in any effort to discuss with her how she could take care of small children while using a cane or walker, or while on presumably mind-altering pain meds.

This, of course, was the school district's fatal mistake.

The plaintiff submitted a request for leave for the second surgery, and got no response until about 10 days later, after she had already gone out of work. When the response finally came, it was to deny the leave and to fire her. The plaintiff sued under the ADA for failure to accommodate or engage in the interactive process. The school district moved for summary judgment, but a federal judge in Texas denied the motion on the ground that the district had not engaged in the interactive process. Because it did not do so, it could not show that the plaintiff's proposed alternatives to a leave of absence were unreasonable, or an undue hardship.

I know I've been a broken record on the need for employers to engage in good faith in the "interactive process" with employees who request time off or other accommodations at work, no matter how unreasonable or even impossible the proposed accommodations may appear. Here is one more reason why.

Record.That'll_Be_The_Day-55009.jpgIf this record were broken, it would be me talking about the interactive process. (Note title of song and name of artist. LOL!)

Employer makes very expensive severance mistake. In our third and final case of the week, a furniture manufacturer in South Dakota decided to close its doors. According to the company, it did not expect to find a buyer. So the company went ahead and sent out a memo to employees (to the employer's credit, far in advance) and let them know what was happening. The memo said that severance pay would be issued to all employees who stayed on until the facility closing. Two later employee communications said the same thing. One communication specifically said that the company would not "renege" on its promise to pay severance.

Louisiana_Five_Contracts.jpg"Gentlemen, it looks like we get severance even if a buyer hires us all! Huzzah!"

Well, lo and behold! A few months later, upon the verge of the closing, the company found a buyer, and the buyer agreed to hire many of the company's employees. So now the company's like, OK, we'll pay severance to employees who aren't hired by the buyer, but we don't have to pay it to the employees who get hired by the buyer. And the employees are like, NO, you said you would pay us severance if we stayed on until the closing, and we did, so you owe us the money now regardless of whether we are hired by the buyer. And the company is like, NO, WE DON'T. And the employees are like, YES, YOU DO. (Etc.)

So, they went to court, and both sides filed motions for summary judgment because the facts of the case were undisputed. You can probably guess the outcome -- for the most part, the court granted summary judgment to the employees and denied the employer's motion. None of the communications sent out by the company said anything about ineligibility for severance if the employee was rehired by the buyer. Moreover, the employees' relationship with the company and the buyer was at-will, meaning that the buyer was not under any obligation to rehire them. A contract is a contract, and these severance communications are a contract, the court said. The employees upheld their end of the bargain by staying on until the company closed its doors. (Even though the doors reopened virtually* the next day under the new company.) So the employer is going to owe more than $2 million in severance pay to employees who haven't even lost a single day of work.

*The facility was closed for two weeks between the time that the company vacated and the buyer took over.

Ouch! How could this have been avoided?

In plant closing situations, it is normal for employers to want employees to stay on until the bitter end because it makes the transition that much smoother. It is also normal for employees to want to find jobs elsewhere while the gettin' is good. To encourage the employees to stay (and possibly forgo some job opportunities elsewhere), employers frequently offer what is known as a "retention bonus" incentive to reward employees who stay on until the company is ready to let them go.

Unfortunately for this company, it appears that it did not consider the possibility that a buyer might be found and that the buyer would immediately hire many of the employees with no break in service.

So, in a spirit of, "It could be that the purpose of your life is only to serve as a warning for others," I submit that any severance package that includes a retention incentive should expressly address what will happen in the event of a purchase/rehire. If you want to pay the bonus regardless and can afford it, then great, because it was probably really stressful for your employees while they waited to learn of their fate -- even though everything turned out all right in the end. But if you don't or can't, then you need to include that in all written communications regarding your severance package. Otherwise, you risk the possibility that a court will find that you must pony up, even if your employees didn't suffer any loss.

Image credits: Wikimedia Commons.

Eau, de humanity! Better watch those fragrances if they make your employee sick.

Posted by Robin E. Shea on August 09, 2012

This issue has been coming up a lot lately: What should an employer do when an employee claims that her co-workers' fragrances make her sick?

(I'm not being sexist here -- every time I've had it come up, it was a woman complaining about women's fragrances. For the record, men's fragrances can be annoying, too. When they're not completely irresistible.)

Allow me to specify what I mean by "sick." What I mean is ADA-disabled sick. The scent brings on attacks of asthma, or COPD, or whatever. In other words, more than an odor that the employee finds unpleasant or oppressive.

Cherry_blossoms_Himeji.jpgA recent case makes me glad that I have advised employers in this situation to take such complaints seriously. UPDATE (11/2/12): The employer in this case won summary judgment, but my recommendations below still stand.

And I've also learned that getting between a woman (person?) and her (his? their?) fragrance can be a dangerous thing.

I'll talk about some proposed solutions, but, first, let's look at the case. The plaintiff worked for a county social services department in Ohio. She claimed that the fragrance worn by some of her co-workers -- Japanese Cherry Blossom* -- aggravated her asthma and caused her to suffer from other unspecified chemical-induced allergies.

*Always on the lookout for my readers, I hereby helpfully link to Japanese Cherry Blossom, although I have not tried it out myself. According to the website Fragrantica, Japanese Cherry Blossom has "[t]op notes" of "plum, pear, and apple; middle notes are mimose, tuberose, lily, kyoto rose petals and japanese cherry blossom; base notes are sandalwood, amber, patchouli, cinnamon, himalayan cedar, musk, vanilla, and oakmoss." (Spelling and capitalizations in original.)

According to the plaintiff's lawsuit, she asked the county to ask her co-workers not to wear Japanese Cherry Blossom perfume. The county did nothing. The plaintiff had a bad reaction and had to go to the emergency room. Her co-workers then had a catty conversation about her on Facebook, and they refused to give up their Cherry Blossom. They probably started bathing in it, just to spite her.*

*My speculation. May not have actually happened.

The plaintiff then submitted a note from a nurse saying that the scent caused her asthma to flare up. The nurse acknowledged that the county could not ban clients or the general public from wearing Cherry Blossom perfume but said that having her co-workers avoid using it would at least minimize her exposure. The county, perhaps afraid of an employee mutiny, responded by "requesting" but not requiring that the co-workers stop wearing Cherry Blossom and directed the co-workers to avoid in-person contact with the plaintiff as much as possible. You can imagine what happened next. The co-workers probably started paying long, chatty visits to the plaintiff in her cubicle immediately after emptying magnums of Japanese Cherry Blossom on their heads and gargling with it.*

*My speculation. May not have actually happened.

Finally, the plaintiff asked to be allowed to telecommute, and her request was denied. The decision didn't make clear whether this was a job that lended itself to a telecommuting arrangement, but I doubt that it was. I assume the plaintiff would have had to meet in person with clients, which probably had to be done on-site.

Curious about the Affordable Care Act (aka "Obamacare") and how it will apply to you? Of course you are! Check out our sister blog, Employee Benefits Unplugged, for everything you need to know. The latest posts on the ACA are here, and here, and here.

Anyway, the plaintiff sued for disability discrimination under the ADA and the Ohio human rights statute, and the county filed a motion for judgment on the pleadings, which is a way to get a lawsuit dismissed based on the material in the initial court pleadings. The court denied the motion, which means the case will proceed. It's possible that the county will get the case dismissed later on at the summary judgment stage, or that the county will prevail at trial.

But what is noteworthy is that the court found that the plaintiff had at least stated a valid claim for disability discrimination based on the county's response to her request for accommodation. ThePublix_bottled_water.jpeg court also said that the county might be required to adopt a fragrance-free policy, particularly given that the co-workers refused to give up their Cherry Blossom even after being asked nicely to do so.

In the fragrance situations I've been personally involved in, employers rightfully fear that the alleged "sensitivity" is bogus. I've also seen the perfume-wearers become angry and offended when asked to give it up, just like the co-workers in the Ohio case. In one situation I'm aware of, the perfume-wearer even claimed that she was being discriminated against. (I know. Don't ask.)

So, how do you deal with fragrance sensitivity without ticking off everybody else?

1. Clarify the issue. Does the employee simply dislike the scent, or is he or she contending that it causes genuine medical problems? If the former,  you're not legally required to take action, although you can as an employee relations matter -- it's up to you. If the latter, read on . . .

2. Get documentation. If the employee contends that fragrances cause medical problems, then insist on a doctor's note or other appropriate medical documentation. The documentation should tell you whether a specific scent is the problem, or whether it is a "family" of scents, or whether it is all scents. The medical provider should know what kind of work atmosphere is involved -- whether the employee with the sensitivity works in an office, a cubicle, an open area, or is on the road 99 percent of the time, as well as the level of contact that the employee has with people over whom the employer has no control (customers, patients, social services recipients, etc.). The medical provider should also, of course, make specific recommendations regarding possible accommodations.

3. Follow up. If the medical documentation doesn't contain all of the information you need (see No. 2, above), then don't be afraid to follow up with the employee and/or the medical provider until you get it.

4. Take action while you can still be "moderate" about it. Ward off the problem before you get a court order compelling you to adopt a 100 percent fragrance-free workplace. Do you have any idea what that really entails? Perfume, yes, but also shampoo. Conditioner. Soap. Deodorant. Hand lotion. Body lotion. (You can have my lavender-scented Aveeno Stress Relief Moisturizing Lotion* when you pry it out of my cold dead hand.) Shaving stuff. Toothpaste and mouthwash. Even some makeup.

*Not a paid product endorsement.

Fifth, avoid singling anybody out. As we've seen in the Ohio case and at least one other, folks get tetchy when you imply that they smell bad, especially when they've gone to the trouble of fighting the traffic and crowds at the mall and being condescended to by snooty beauty consultants iMakeup_Woman.jpgn stiletto heels and lab coats and sampling hundreds of scents in the quest for their perfect "signature" fragrance at $150 an ounce. I went through hell, lost hours of my life that I'll never get back, and spent half a paycheck to smell like this. And now you're telling me I stink??? You stink!!!

Needless to say, you should avoid identifying the employee who made the complaint. But also, counter-intuitive as it may seem, it's much easier to issue a generic policy directive requiring that all employees refrain from wearing perfume or cologne, using scented candles or air fresheners, or using scented hand lotion, at work. If the rule applies to everybody, and no one employee or group of Japanese Cherry Blossom wearers are made to feel "stinky," you are much more likely to get compliance and avoid vindictive passive-aggressive reactions, which so often lead to lawsuits. And with early compliance, you may not ever have to adopt "extreme" solutions (see No. 4, above).

Photo credits: Wikimedia Commons (public domain).

EMPLOYMENT LAW BLOG CARNIVAL, Chinese New Year Edition

Posted by Robin E. Shea on January 16, 2012

Dragon.Top.Nine-Dragon_Screen-center.JPGThe Chinese New Year is almost upon us. In honor of the Year of the Dragon, and in fond farewell to bilingual Jon Huntsman, who announced that he was withdrawing from the presidential race (hmm . . . speaking Mandarin in a Republican debate? . . . not sure that's a choice I'd have made), we have enough employment and HR blog posts to get you through the entire new year's season without repeating once!

(CAUTION - last I heard, the anti-SOPA blackout is still scheduled to occur on Wednesday even though the bill has been severely stalled in the House of Representatives, so if the links don't work on Wednesday, we hope you will try again on Thursday when everyone is back up.)

OK, on with the festivities! Thanks to Wikipedia for the information about the Chinese New Year and the quotes.

Preliminaries

Before New Year's Day, Chinese families thoroughly clean their houses -- not only to be ready for celebrations, but also to sweep away the bad luck from the prior year and make the house ready for good luck in the new year. "Brooms and dust pans are put away on the first day so that the newly arrived good luck cannot be swept away."

Mark Toth of The Manpower Group Employment Blawg recommends some "housecleaning" with employer performance evaluations, in "Evaluation Evaluation" and "Performance Evaluation Worst Practices."

Day One: Respect Your Elders

Dragon.Chinese_draak.jpgThe Chinese have a number of traditions on New Year's Day, but the most universal is to honor one's elders. Chinese families "visit the oldest and most senior members of their extended families" on this day.

Philip Miles of Lawffice Space has a good post about an older applicant who was rejected for being "overqualified" -- is "Too Smart to Hire?" just code for age discrimination?

Also, if you represent family businesses, you will love Adam Whitney's "You May Be Damned if You Work With Family Members."

Day Two: Show Me the Money!

On the second day of the Chinese new year season, families celebrate the birthday of the God of Wealth. "Business people of the Cantonese dialect group will hold a 'Hoi Nin' prayer to start their business" on this day "so they will be blessed with good luck and prosperity."

Prayer at work? Jessica Miller Merrill of Blogging4jobs has sparked lively comments and is sure to generate debate with her "God Has No Place in the Workplace." (For another view, please see my "Religion in the Workplace: 5 Devilish Employer Mistakes," and scroll to "Religion is a topic of which we must never speak, ever ever ever ever.")

Day Three: Do Not Leave the House Today*.

*Pee-Wee Herman's fortune on the day his bike was stolen.

The third day of the season is the day of "the God of Blazing Wrath." Chinese families are advised to stay home and not visit relatives on this day.

While you're holed up indoors, be sure to visit Ari Rosenstein's CPEhr's Small Biz HR Blog, which has a free downloadable "2012 Human Resources Updates: What Employers Need to Know." Cuddle up next to a blazing fire and read his guide while you stay out of the way of the Blazing Wrath.

Day Four: Greedy Heathens Go Back to Work. (kidding!)

Those who celebrate new year's for only a couple of days return to work on this day. Everyone else continues the festivities.

Speaking of attendance at work, Jon Hyman of the Ohio Employer's Law Blog has a great post entitled "Resolve This Year to Properly Handle No-Fault Attendance Policies." This is a big issue, especially considering the EEOC's $20MM settlement with Verizon, in which the agency claimed that the company's no-fault attendance policy violated the Americans with Disabilities Act.

Day Five: Firecrackers and Dumplings!

The fifth day, Po Wu, is the day for pot stickers (jiao zi) and shooting off firecrackers to get the good attention and intercession of Guan Yu. Guan Yu was a general in the Han Dynasty and is now worshipped asFirecrackers_lit_by_hand.jpg a Chinese god of war, representing "loyalty, truth, strength, and justice."

John Holmquist of Michigan Employment Law Connection has an interesting post about an employer who tried to go on the offensive by filing a declaratory judgment action before an ex-employee could file suit alleging disability discrimination based on his HIV status.

Day Six: Back to the Grindstone, if You're Taiwanese.

The Taiwanese have to go back to work today.

No doubt they'll be tweeting, Facebooking, and linking in. Eric Meyer of The Employer Handbook has a most-interesting post on "Are employees' LinkedIn contacts considered your trade secrets?"

And check out Dawn Lomer of i-Sight Blog, who advises us on "Avoiding the Dangers of Social Media Background Checks."

Day Seven: We're Not Getting Any Younger.

This is renri, the birthday of the common man. According to Chinese tradition, everyone is a year older as of this day.

Since we're all getting older, you may enjoy two blasts from the past on the subject of age discrimination: Donna Ballman's "Nine Signs of Age Discrimination" and my "Nine Signs That You'll Lose Your Age Discrimination Case."

Day Eight: Everybody Back to Work! (And a Nice Custom)

Everyone should be back at work by now, but Chinese employers offer a lunch or dinner for their employees, thanking them for the good work they've done in the past year.

And while we're on the subject of good employers, be sure to check out "How NOT to Go Out of Business" on Tim Eavenson's Current Employment blog and Andrea Paris's excellent Q&A on paying commissions in compliance with California law.

Days Nine and Ten: Thanks to the Jade Emperor of Heaven

On these days, the Chinese offer prayer and thanks to the Jade Emperor of Heaven in the Taoist pantheon.

While giving thanks, you'll also be thankful for Joni Kletter's excellent summary of recent cases interpreting the Americans with Disabilities Act Amendments Act.

Also, see Robert Fitzpatrick's "Observations Regarding the Latest Supreme Court Decisions," which includes his take on the recent Hosanna-Tabor decision, as well as five other noteworthy cases relevant to employment law.

And George Lenard of George's Employment Blawg takes a deep dive into Hosanna-Tabor.

Days Eleven and Twelve: Holiday Peters Out.

More celebratory dinners on days 11 and 12. Not much else, according to Wikipedia.

Since it's a quiet couple of days, this is a good opportunity to catch up on some excellent posts. Donna Ballman of Screw You Guys, I'm Going Home has a must-read on one-sided confidentiality agreements, and Dan Schwartz of the Connecticut Employment Law Blog has another must-read on employment rights of smokers.

Day Thirteen: "Ugh, I don't feel so good . . ."

On Day Thirteen the Chinese are all partied out. They purge their systems by eating a pure vegetarian diet on this day, which is also devoted to Guan Yu.

While we're sobering up and fasting, it's a good time to read Sharlyn Lauby's "Losing Your Driver's License Can Impact Your Career," in which she interviews Heather Bussing of HR Examiner.

You may also enjoy some a cold glass of milk and some "Employment Law Leftovers" if you can't face what's up for the new year just yet.

Day Fourteen: ????

Wikipedia makes no reference to this day. I guess nothing happens?

Since nothing's going on, this would be a good time to read my excruciating "2011 labor and employment law year in review." Guaranteed to have you begging for mercy!

Day Fifteen: Grand Finale.

The fifteenth and last day of the Chinese New Year is the Yuan Xiao Festival (aka the "Lantern Festival"). The candles and lanterns are lit to guide the good spirits to one's home. In Malaysia and Singapore, traditions similar to Valentine's Day are celebrated.

While we're on the subject of romance and unrequited love, be sure to read Gary Gwilliam's "Reasons to Pursue Emotional Distress Damages in Employment Cases."

Dragon.Day 15.Chinese_lantern_night_sky_lijiang_yunnan_china.jpg

Our "host with the most" in February will be John Holmquist. Please join us then, and happy Chinese New Year!

This week in labor and employment law - Marx Brothers Edition

Posted by Robin E. Shea on January 13, 2012

Marx_Brothers.public domain.jpgIt's been another zany week or so in the world of labor and employment law, rivalling Groucho, Harpo, Chico and Zeppo. Here are a few items that jumped out at me. (Each subhead is a line from a Marx Brothers movie or the title of a Marx Brothers movie. Answers at the end.)

"Hurry up, or you'll be late for jail!" Pepsi Beverages (formerly Pepsi Bottling Co.) agreed to a pre-litigation settlement of $3.13 MM to resolve charges that it considered arrest records in making hiring decisions, which, according to the U.S. Equal Employment Opportunity Commission, meant that approximately 300 otherwise-qualified African-American applicants were rejected. The rejected applicants will be offered positions with the company as part of the settlement. The EEOC is on record as strongly opposed to the use of virtually any criminal background information in connection with employment decisions. However, it appears that the company was using arrest as well as conviction information, which has been a no-no for a long time, and was flatly rejecting anyone with a "history" instead of considering the impact of the conviction on the particular job . . . another no-no. The company has agreed to revise its employment policies as part of the settlement.

Horsefeathers. A federal judge in Chicago denied a motion to compel in a class action filed by the EEOC against carrier DHL, alleging widespread racial segregation in job assignments. DHL requested detailed information and documents from each class member about subsequent employment, as well as personal medical information. The judge denied the request for information about subsequent employment because the EEOC had abandoned its claim for back pay or front pay -- therefore, that information was not "reasonably calculated to lead to the discovery of admissible evidence." Although the EEOC was seeking compensatory damages for emotional distress, the judge held that the medical information did not have to be produced because the agency was seeking only "garden-variety emotional distress" based on humiliation, embarrassment, and the like. Not all courts have bought this "garden-variety emotional distress" argument. Some have found that if a plaintiff pursues an emotional distress claim, he or she has opened the door to discovery of evidence regarding her medical, mental, and emotional condition.

"The party of the first part shall be known in this contract as the party of the first part." National Labor Relations Board Chairman Mark Pearce and now-ex-Member Craig Becker invalidated an arbitration agreement that precluded employees individually from pursuing class or collective actions. (Member Brian Hayes, the only Republican on the Board at the time, had recused himself.) Pearce and Becker said that the agreement interfered with employees' rights under Section 7 of the National Labor Relations Act to "engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .." Significantly, the employer was non-union and the agreement was not collectively bargained. The two-member panel invoked the same "protected concerted activity" clause that has been used against non-union employers who crack down on employees who use social media to rant about their employers.

Monkey Business. Speaking of the NLRB, President Obama and the Republican members of Congress have been in quite a battle over recess appointments. Yesterday the U.S. Department of Justice released an internal memorandum that supported the President's position. A recap: As we have reported before, Member Becker's recess appointment to the NLRB expired at midnight December 31, and his last day at work was January 3. Becker's departure left the Board with only two members (Pearce and Hayes) and three vacancies, and the Supreme Court has said that a three-person quorum is necessary for Board action. In an attempt to prevent Obama from making more recess appointments, the Republicans held pro forma sessions every three days during their holiday break. No business was conducted during the pro forma sessions, which lasted about one minute each. Technically, this meant that Congress was not "in recess" for the whole break and that Obama therefore would not be authorized to make any recess appointments. However, Obama outmaneuvered the Republicans (for now, anyway) and, armed with the DOJ memorandum, which declared the pro forma sessions a technical maneuver that could be ignored, made recess appointments to fill the three vacant positions. Legal challenges are sure to ensue. Bring your popcorn.

"Hail, hail Freedonia, land of the brave . . . and . . . free!" In a nice victory for religious employers, the Supreme Court unanimously held that there is indeed such a thing as a "ministerial exception" to the federal anti-discrimination laws arising from the Establishment and Free Exercise clauses of the First Amendment, and that it applies to people other than the clergy. The plaintiff in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was a teacher who was formally considered a "minister" in the church and taught religion and led devotions and worship services, but who spent the majority of her time teaching "secular" subjects. She alleged that her employment was terminated in retaliation for exercising her rights under the Americans with Disabilities Act. Although many lower courts had recognized the ministerial exception, the Supreme Court had not addressed the issue. The EEOC and the government had argued unsuccessfully that the exception was unnecessary. The decision means that, if a court finds that the ministerial exception applies to a case, the case will be dismissed. (Religious employers who are not Protestant Christians will be particularly interested in the concurring opinion by Justices Samuel Alito and Elena Kagan -- not a combination you see every day! -- in which they provide an excellent discussion of how the exception should apply to employees who perform religious functions but are not "ministers.")

"I'll see my lawyer about this as soon as he graduates from law school." The U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment in a lawsuit filed by a library employee of Ohio State University who alleged that he was ostracized and constructively discharged after he recommended a "freshman-reading" book that had a chapter describing homosexuality as aberrant behavior. The Court found that the plaintiff had waived his claims for damages by first having filed a state-court lawsuit. (Under Ohio law, this results in a waiver of the right to recover damages in any other forum.) His First Amendment retaliation claim was subject to dismissal because, although his speech pertained to a matter of public concern, he spoke in connection with his job duties and not as a "citizen." He also could not establish "adverse action" because both his dean and his immediate supervisor had supported him, even though many of his peers were vocally critical of him and had called for his termination. Finally, the Court rejected his claim that the OSU sexual harassment policy was unconstitutionally overbroad and vague.

 

MARX BROTHERS TRIVIA:

"Hurry up, or you'll be late for jail!" A Night at the Opera, 1935.

Horsefeathers, 1932.

"The party of the first part shall be known in this contract as the party of the first part." A Night at the Opera, 1935.

Monkey Business, 1931.

"Hail, hail, Freedonia [etc.]" Duck Soup, 1933.

"I'll see my lawyer about this as soon as he graduates from law school." Duck Soup, 1933.

PHYSICIAN, HEAL THYSELF! Good lessons for employers from AMA case

Posted by Robin E. Shea on October 19, 2011

It could be that the purpose of your life is only to serve as a warning to others.

In any event, that must be what the American Medical Association is thinking. The organization took it on the chin this week in a case involving the Family and Medical Leave Act.300px-The_Anatomy_Lesson.jpg

The case is well worth a post-mortem because of what it teaches employers about "causation" in retaliation and protected concerted activity cases.

Names have been changed to protect the allegedly* guilty.

*Even though the AMA lost a battle with this decision, it has not lost the war. The court found that summary judgment should not have been granted, but that means that the case will be tried before a jury. A jury might side with the plaintiff, but it might also side with the AMA.

Here's what happened:

The AMA, like just about every other employer, suffered from the economic downturn in 2008, and a manager -- we'll call him Dr. Pepper -- was told to reduce costs. Eventually it was determined that he was going to have to eliminate one position.

(One more disclaimer before I go on. Despite my fictional "doctor" names, none of the individuals actually involved in this case were physicians, as far as I can tell.)

Dr. Pepper chose an individual to eliminate -- we'll call him Dr. Seuss -- and sent an email to his boss informing her that he had chosen Seuss, and the rationale for selecting him. The gist of the rationale was that most of Seuss's work was going away anyway, so it made the most sense to eliminate his position.

Dr. Pepper's boss -- we'll call her Dr. Scholl -- sent him a reply asking whether the plaintiff, Dr. Dre, should have been eliminated along with Seuss. Pepper replied no, because he did not think it would be wise to eliminate any more positions than absolutely necessary. Scholl apparently was cool with this answer. This all happened in late October 2008.

So, we get to November 20 at a conference. Dr. Dre was there with Dr. Pepper. Dre told Pepper that he was going to have surgery on his knee in January, would be out of work for a few weeks, and was going to apply for short-term disability.

I hope you've stayed with me, because now it gets interesting.

Ten days after this conversation, on Sunday night of Thanksgiving weekend, Dr. Pepper sent an email to Dr. Scholl, apologizing for his "11th hour" change in decision, and telling her that he now wanted to eliminate Dr. Dre instead of Dr. Seuss. Among other things, Pepper said that they could more easily weather the loss of Dre because they were preparing for him to go out on disability anyway.

Poor Dr. Dre was terminated in January, and he hired a lawyer, and his lawyer sent a nasty letter to the AMA in February. The AMA's in-house attorney informed the organization's HR representative about the threatened litigation. We'll call the HR rep Dr. Bombay. (Nowadays, should that be Dr. Mumbai?)

It turns out that Dr. Bombay and Dr. Pepper had discussed the decision to terminate Dr. Dre back in November and that Bombay had taken handwritten notes. Upon learning of the threatened litigation the following February, Bombay typed up his notes and shredded his original handwritten notes, and he dated the typed notes "November 25, 2008," even though it was now February 2009.

Hmmmmm! Verrrrrrry interesting.

But, wait! There's more!

It turned out that Dr. Pepper's calendar didn't show a meeting with Dr. Bombay on November 25, and Pepper didn't remember having had one. Even worse, he testified that he didn't decide to eliminate Dr. Dre until after that date. All this made Bombay's backdating look even more dishonest.

In May 2009, the AMA eliminated about 100 more employees, including Dr. Seuss, the person Dr. Pepper had originally planned to eliminate. Apparently this was enough for a district court to grant summary judgment to the AMA. (I know! I'm not sure how that happened, either.)

But the U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, reversed, which means that Dr. Dre will be allowed to take his FMLA "interference" and retaliation claims* to trial.

*FMLA "interference" is simply a denial of FMLA leave to someone who is entitled to it, or doing something to discourage the individual from taking FMLA leave. It does not require a bad motive on the part of the employer and can even be based on a mistake or misunderstanding. In the case of FMLA retaliation, the employer "punishes" the employee for requesting or taking FMLA leave. Proof of the employer's unlawful motive is required for a retaliation claim.

So, let's make the usual Y-shaped incision and see what lessons can we learn from our "autopsy" of this case.

1. Timing is really, really important. On October 28, Dr. Pepper told his boss that Seuss should be eliminated, and he gave a good reason for the selection. He also told her that he thought it would be unwise to eliminate anyone else, and specifically Dre. On November 20, Dre informed Pepper that he would need to take FMLA leave in January. Within 10 days, Pepper reversed his RIF decision and recommended that Dre be eliminated instead of Seuss. Whatever Dr. Pepper's actual motive, this timing looks quite damning, doesn't it? The Seventh Circuit thought so, too.

2. Mentioning the FMLA leave in the poorly-timed email was not cool. In Dr. Pepper's "11th-hour" email, he said that the department could adjust easily to Dr. Dre's elimination because they were already preparing for his medical leave. Yes, I know there could be an innocent explanation for this: Pepper wasn't giving that as his motivation, he was simply giving his opinion about the effect of the decision. But this statement, especially when considered along with everything else, helps to make it look like the FMLA leave request was the reason for the selection.

3. Backdating documents is really not cool. Here's what I always tell clients: It's fine to document an event after the fact, even long after the fact, and I strongly recommend it if you didn't document at the time. But never, ever, ever, ever, ever, ever, ever in a million zillion years backdate it -- unless you are sure that the backdating is "transparent" (for example, drawing a line through the current date so that the original date is still visible, or saying something like "Created 10/22/11 based on event that occurred 6/1/11."). Any other kind of backdating looks dishonest and, as the Seventh Circuit noted, is more evidence that the employer may have had an unlawful motive and was trying to cover its tracks.

4. Destroying handwritten notes upon learning of threatened litigation (aka "spoliation") is the uncoolest of all. If you're not expecting litigation and don't have reason to expect it, then you can create a "draft" document and destroy the draft after creating the "final" version. But once you either become aware of litigation or have reason to expect it, your right to do this is gone. You must save all of your relevant documentation. Dr. Bombay, the HR representative who destroyed his handwritten notes after learning of the threat of a lawsuit, committed "spoliation," whether he realized it was wrong or not. As a result, when the case goes to trial, the judge may instruct the jury that the notes would have been favorable to Dr. Dre's case.

5. To err is human: be willing to cut your losses if you messed up, or if it will look like you messed up even if you didn't. In this case, it appears that Dr. Dre would have survived at the AMA only about 5 more months if Pepper had stuck with his original plan to eliminate Seuss in January. The undisputed evidence showed that the AMA had a massive reduction in May, and it probably would have included Dre if he'd still been around. Damages under the FMLA are limited to so-called "make-whole" relief (essentially, back pay, back benefits, costs and attorneys' fees, possibly doubled in the case of a willful violation). Even assuming the AMA might have been on the hook for a "willful" violation, it probably had a strong argument that it would not have owed much more than 10 months' pay to Dre, plus his costs and fees. Given that, it might have made economic sense for the AMA to have settled the case in mediation. (Please note that mediations are confidential, so it is very possible that the AMA tried to do just that.)

I was tempted to end this post with a rap about Dr. Dre, the AMA, the FMLA, the month of May, Dr. Bombay, and "anyway." Then I thought better of it. You're welcome.

5 reasons for employers to "hold their fire" on dismissal of employment suits

Posted by Robin E. Shea on October 14, 2011

As they said at Bunker Hill, "Don't fire until you see the whites of their eyes!"

Last week, I wrote about early motions to dismiss employment lawsuits under Rule 12(b)(6) and questioned whether they were always the best strategy for the employer. Most of last week's post simply described the differences between a motion to dismiss, a motion for summary judgment, and a trial, as background for the benefit of our readers who are not lawyers.

Battle of Bunker Hill.gifAs noted in a comment by Philip Miles of Lawffice Space (great blog, by the way, and well worth a visit), there is no question that a judicious motion to dismiss an employment lawsuit may be a good idea. If it works, of course, it is by far the least expensive option because it allows you to end the lawsuit at the earliest possible point. (Big "if," unfortunately, but we can dream, can't we?)

I'd give a motion to dismiss serious consideration in these circumstances:

*As Philip points out, even if you can't get the entire lawsuit thrown out, you can narrow the case down to the "real" issues by getting the "trash" claims dismissed. Plaintiffs often throw the kitchen sink at the defendant, and a "surgical" motion to dismiss will allow everyone to focus on the part of the lawsuit that is serious.

*Sometimes it will be crystal clear from the allegations of the complaint that the claim is baloney ("I was fired because I'm a woman. I got caught stealing, but males who didn't steal were not terminated") or is outside the statute of limitations ("Twenty years ago, the company fired me because of my race"). Why don't we get lawsuits like this more often?

*Sometimes it's a good strategy for pragmatic reasons -- maybe your case has some problems (for example, hostile witnesses, lack of documentation, or poor handling of the situation that led to the lawsuit), and it's worth trying an early motion to dismiss to avoid all that.

*Or maybe you just want the plaintiff's lawyer to know that your company isn't an easy mark for lawsuits and that she'll have to work for her money. You need to be careful about this motive, though -- you may be opening yourself up to sanctions if you don't have a strong legal ground for the motion.

In short, I'm not 100% opposed to a motion to dismiss, and I have been known to file them occasionally myself. That having been said, I think defense lawyers frequently overuse them, and I'd like to give you five reasons why an early motion to dismiss is not always in your best interests as an employer.

Reason No. 1 - You may "make bad law." A real-life example will illustrate what I mean. My state of North Carolina, like many other states, recognizes a claim for "public policy" wrongful discharge but takes a fairly limited view of what a protected "public policy" is. Among other reasons, you can't fire an employee for refusing to commit perjury, or for a discriminatory/retaliatory reason, or for filing a workers' compensation claim, or a truck driver for refusing to falsify his driving logs.

In a real lawsuit decided last fall, a landscape architect claimed that his ex-employer fired him because he made complaints about the employer's lack of compliance with state laws requiring that projects be certified by a real landscape architect. The architect/plaintiff claimed that his ex-employer's refusal to comply created public safety issues, as well as cost overruns and delays on multiple projects, and he gave specifics. The employer filed a motion to dismiss on the ground that North Carolina didn't recognize a "public policy" discharge claim on these grounds.

Well, guess what? It does now. A federal district court found that our state courts would indeed recognize such a claim. (Link is to the magistrate's recommendation, but the judge adopted the recommendation.) Of course, I have no idea what evidence the employer would have been able to present in its own behalf because a motion to dismiss is filed before the development of evidence. Maybe this motion to dismiss was the best in a set of bad options. But there is also no question that we now have a new cause of action for wrongful discharge that we didn't used to have . . . all because of this motion to dismiss.

Reason No. 2 - Your motion may "coach" the plaintiff about how to say it better next time. Let's say the plaintiff, who is African-American, alleges, "The company discriminated against me because of my color and national origin in violation of Title VII of the Civil Rights Act of 1964." Let's say there is no factual allegation that her "color" played any role in her termination, and because she's American, she doesn't have a national origin claim. Should you file a motion to dismiss? I wouldn't, because your motion will teach her (or her attorney) that she needs to use the buzzword "race" instead of "color" or "national origin" in the future.

Reason No. 3 - Even if your motion is granted, the judge will probably give the plaintiff "leave to amend." Sad but true. As I said last week, if you wait and win on a motion for summary judgment, the case is over subject only to the plaintiff's right of appeal. But if you win on a motion to dismiss, chances are very good that the judge will simply let the plaintiff rewrite his complaint and file it again. (Also, your motion will have taught him how to make it "stick" this time. See Reason No. 2.)

Reason No. 4 - An overly aggressive motion to dismiss will tick off the judge. You certainly don't want the judge to be mad at you, and in my experience, judges can't stand a bully. They especially don't like to see big law firms hassling small practitioners, or -- heaven forbid -- plaintiffs who are representing themselves. If you have a really well-founded motion to dismiss, go for it, but if it's borderline and the other side is a "small lawyer" or pro se plaintiff, I'd back off. Instead, be nice, and wait for summary judgment. 

Reason No. 5 - It's often an exercise in futility and a waste of money. (See all of the above.) PS - Judges don't like wasting time on unnecessary motions any more than they like bullies.

Here are some specific instances in which I would not recommend filing an early motion to dismiss an employment lawsuit:

*Where the plaintiff did a poor job articulating her allegations, but everyone knows what she meant and she has a valid claim.

*Where the plaintiff is pro se. Period. (OK, maybe if the lawsuit is totally incoherent, but otherwise . . .) Dude, be nice. Let him have his day in court.

*Where you have a "home run" case, but you need a little bit of evidence to get wood on the ball. If you need evidence, that's summary judgment, not a motion to dismiss.

*Where you can get one or two claims dismissed, but many more claims will have to remain in the lawsuit. This is a matter of economics -- if the valid claims significantly outnumber the "trash" claims, it's probably going to be easier and cheaper for the client to dispose of everything on summary judgment.

*Where you only "probably" have a statute of limitations defense. For example, the federal anti-discrimination laws require that you file suit no later than 90 days after receipt of the EEOC's dismissal of the charge. Let's say the lawsuit is filed on day 93 after the date of dismissal. Don't waste your time with a motion to dismiss the federal claims on grounds of untimeliness - the plaintiff will simply respond with the claim that she didn't receive the notice until day 95, and you won't be able to disprove it. The time runs from date of receipt, not date of issuance. (See also Reason No. 2, above, about educating your opponent.)

Wish I'd thought of that - On a completely unrelated note, blogger Jon Hyman had a fantastic post this week about an Employer's Bill of Rights. Please read it - you won't be sorry!

Employers, don't try to dismiss that lawsuit before its time.

Posted by Robin E. Shea on October 07, 2011

Human Resources and in-house counsel, please consider this a legal "consumer report." Remember - we offer a "no legalese" guarantee, or your money back!

My fellow employment lawyers, is that Rule 12(b)(6) motion really necessary?

I've spent this week reviewing federal and state labor and employment law decisions for a Bar Association program I'll beMoney down the drain.jpg presenting at the end of the month. I have been astounded at the number of motions to dismiss that don't seem to have achieved anything for the employer except an unnecessary bill.

So, for you employers out there, here is a summary of the two main types of pretrial dismissals, including the advantages and disadvantages, compared with trial. 

I'll follow up with another post on why I think the 12(b)(6) motion to dismiss is often a ripoff* for the client.

*Please realize that I am not accusing any lawyer or firm of dishonesty or unethical behavior. When I say "ripoff," I mean it in the sense that parking garage fees in New York City are a ripoff. In other words, too much for what you get, even if legal and fully disclosed in advance.

There are generally two opportunities for a defendant to get a lawsuit thrown out before it goes to trial. (I'm oversimplifying a bit.) The earliest opportunity comes right after the lawsuit is filed. This early motion to dismiss is called a "Rule 12(b)(6)" motion because that is the name of the Rule of Civil Procedure that allows defendants to do this. From now on, I'll refer to it as a "motion to dismiss."

Nice Work If You Can Get It - the Motion to Dismiss

What it is. The gist of a motion to dismiss is this: "Your honor, even if everything the plaintiff says in the lawsuit is true, he has not accused our client of doing anything for which the law provides a remedy."

Here's an example. I sue you, and in my lawsuit, I accuse you of giving me a dirty look. Maybe you didn't give me a dirty look, or maybe you did. Even if you did, I can't sue you for that. (At least, not this week.) So, your lawyer would file a motion to dismiss my lawsuit on the ground that I had "failed to state a claim for which relief may be granted."

The upside. If you win (and you would, in this extreme example), the case is over* and you got out of it for a relative song because you didn't have to go through discovery and motions and a big trial.  :-)

*Subject to the plaintiff's right of appeal.

The downside. Because a motion to dismiss is filed so early, the court has to accept everything the plaintiff says as true and pretty much has to give the plaintiff the benefit of the doubt on everything. If the statute of limitations hasn't run out, and maybe even if it has, the judge will give the plaintiff "leave to amend," which lets the plaintiff rewrite the lawsuit so that it states a claim. Usually the judge will dismiss some of the plaintiff's claims but leave others in the case, which means that the motion didn't end the lawsuit. If the defendant loses on its motion to dismiss, in whole or in part, the case goes back for litigation, including discovery, summary judgment, and trial, with all the associated time, expense, and hassle. So the defendant may have incurred significant legal fees and caused delay for very little, if any, benefit.  :-(

Summary Judgment - the Old Reliable

What it is. A motion for summary judgment is filed later, after both sides have filed their pleadings with the court, and after the parties have engaged in discovery (depositions, written questions and requests for documents, and that kind of stuff).

Here's an example. I sue you and say you discriminated against me because I'm an over-40 female. Age and sex discrimination are clearly illegal, so my lawsuit has alleged some illegal conduct on your part, unlike my "dirty look" lawsuit. (A little more than that may be required, but that's a topic for another post.) You take my deposition, and in my deposition I admit that my boss asked me to catch up on my filing and that I told him to take a long walk off a short pier but using significantly more colorful language that I can't include in a family blog. I was fired that afternoon for insubordination and abusive language.

You can't say that my lawsuit fails to state a claim because it does, but you can file a motion for summary judgment.

The upside. On a motion for summary judgment, you can present to the court my deposition testimony, your witnesses' testimony, and other evidence to show that "there is no genuine issue of material fact" that I was discharged for a perfectly legitimate reason. The court will still have to side with the "non-moving party" (in this example, me) on any disputed fact, but it can accept undisputed facts that are in your favor, and even your evidence where I said, "I don't know" or "no me recuerdo." The court doesn't make any judgments about who is more "believable."

Your chances of success on summary judgment are dramatically greater than on a motion to dismiss because you can actually tell a little of your side of the story. If you lose, you go on to trial, but if you win, the case is over.* The court will not give the plaintiff a chance to rewrite her lawsuit at this late stage. And the court will frequently throw out the whole enchilada, too, instead of just a few claims.   :-)

*Subject to the plaintiff's right of appeal.

The downside. You have to go through the time, expense and hassle of the discovery process before you file.  :-(

The Dreaded Trial

Aiiiieeeeeeeeeee! Nooooooooooooooooo . . . 

What it is. I assume you know what a "trial" is.

Here's an example. I sue for age and sex discrimination, and you take my deposition. I say that I heard the CEO say, "I do not want any old biddies over 40 working in this company, and I vow with every fiber of my being to get rid of them all, no matter what it takes." The CEO and 50 bishops deny that he ever said this, and they all insist that I was fired for being a mediocre performer. I do indeed have some lackluster performance reviews.

Here we have a major "material fact dispute," right? If I'm telling the truth, the CEO has admitted to age and sex discrimination. If he's he's telling the truth, then he hasn't, and he has every right to fire a mediocre performer, as long as he isn't doing it for an illegal reason.

So, with this fact dispute, the court cannot grant your motion to dismiss, and it can't grant your motion for summary judgment, either. This is what trials are for.

The upside. (Trying hard here!) At trial, you will have the chance to tell your side of the story, including the parts where I disagree with you. The judge or a jury will decide whom they believe.

The downside. At trial, I get to tell my side of the story, including the parts where you disagree with me. The judge or a jury will decide whom they believe. For me (the hypothetical plaintiff), that's ok. If I lose, I'm no worse off than I was before, especially if my lawyer represented me on a contingent fee basis (you don't pay unless we win!). But for you (the defendant employer), a lot is at stake. A trial is a gamble. You have to worry about, not only the facts, but also how I will come across to a jury as well as how your folks will. In this lousy economy, will the jury side with your CEO?

True story - years ago, we had a witness, a genuinely nice guy, who was despised by the jury because he was squinting during his testimony, which made him look dishonest. In fact, he was squinting because he was wearing new "hard" contact lenses. (I told you this was years ago.) At trial, you have to worry about things like this. At summary judgment, you don't because everything is submitted "on paper" (actually, electronically), possibly with some live arguments by the lawyers.

In addition, a trial is the most time-consuming, expensive hassle of them all, even if you win in the end. 

So, now that you've read that, you may be wondering, Then what's so bad about a motion to dismiss, which will give us one more opportunity to avoid trial?

Great question, but a topic for another post. To be continued . . .