Tuesday, August 15, 2017

Can employers fire employees for attending Charlottesville protests?

I'm sure you've already heard about the violence in Charlottesville this past weekend, and you've probably heard about the efforts to get the white supremacist protesters fired. Is is legal for employers to fire employees for attending the protests?


Generally, yes. Private employers can generally fire employees for any reason or no reason at all unless it conflicts with some established law or public policy (we call this "at will" employment). By now, you probably already know the lawyerly caveat you're about to get here . . . but, it depends. In fact, this may be one of the most convoluted issues ever to grace this fine blog.


Why isn't this like the Google memo guy (which I analyzed here). Google memo guy was working with his co-workers to address the terms and conditions of his employment with his employer ("protected concerted activity" under the NLRA). I have heard nothing to suggest that the Charlottesville protesters were engaged in this sort of protected activity. Also, as Jon Hyman notes, other exceptions may apply.

"Just Cause"

However, there are a few situations that strike me as a little dicier. For example, many employees have individual employment contracts or union collective bargaining agreements that require "just cause" for termination. The "just cause" determination is very case-specific and varies a little based on jurisdiction.

It's usually harder for the employer to establish just cause for a termination based on off-duty conduct. To give you a sense of what's required, Pennsylvania looks at these factors:
First, the nature of the job is an important consideration; an employee in a 'sensitive position' may be subject to dismissal if only to avoid the appearance of impropriety whereas an employee in a non-sensitive position may not . . . . A second relevant factor is whether the conduct in question demonstrates a lack of judgment that erodes confidence in an employee's character . . . . A third factor concerns safety. An employee whose job it is to protect the safety of others is expected to behave in a manner consistent with this goal even while off duty.
City of Phila. v. City of Phila. Civil Svc. Comm'n. Employers must also establish a "nexus" between the off-duty conduct and the employee's ability to perform the job. Established employee policies come into play too.

So, I really can't provide you with a blanket rule, because every situation is different. What job does the employee have? What was (s)he actually doing? Each situation requires individualized analysis, and we may see different results depending on whether the employee was a klansmen punching someone or just some gawker; a neo-nazi or some sort of free speech activist; or maybe just some poor parent who picked a *really* bad weekend to take their kid on a college visit to UVA. The facts matter. And, of course, don't get the wrong guy (example here).    

Free Speech

Private employees generally don't receive First Amendment protections in employment. However, public employees do. Broadly speaking, public employees have a right to speak on matters of public concern while acting as private citizens. Public employers are generally prohibited from retaliating against public employees for First Amendment protected speech. However, once again, this is a complex area of the law - I'm just throwing out some general considerations.

State Laws

As usual, I present this with the caveat that states have myriad laws that I'm simply unfamiliar with. For example, the D.C. Human Rights Act prohibits employment discrimination based on political affiliation; Colorado prohibits employment termination for lawful outside-of-work activities; and Connecticut applies something like First Amendment free speech protections even to private employees (ask Dan Schwartz - I don't know anything about it).


Somebody could write an entire book on all of the legal issues raised by firing employees who attended Charlottesville. Most of the time, employers can go ahead and pull the trigger; but, there are a ton of mines in that field.

Tuesday, August 8, 2017

About that guy who got fired from Google for writing that memo . . . .

The Setup

By now, you have probably already heard about the Google engineer who got fired for writing that memo - you know, this one. The memo addressed controversial subjects, and concluded in part:
Differences in distributions of traits between men and women may in part explain why we don't have 50% representation of women in tech and leadership.
The memo described "men's higher drive for status," discussed biological differences between the sexes, and concluded that "not all differences are socially constructed or due to discrimination." It also decried an "ideological echo chamber" at Google.

So, Google fired him for "advancing harmful gender stereotypes" and now he wants to sue. Does he have any viable claims? Sure sounds like it! That doesn't mean he'll ultimately be successful, just that he can likely plead some claims to get this in to court (following exhaustion of some administrative agency procedures).

A few caveats: 1. I don't know anything about California's bajillion (rough estimate) state-specific employment laws, so I'm only covering federal law; and 2. there are always countless facts that are not available to the public.

National Labor Relations Act (NLRA)

Based on this NYT article, it sounds like he's setting up NLRA retaliation claims. He may have a claim for retaliation for "protected concerted activity." Employees have the right to act  together (in "concert") for mutual aid or support to address the terms and conditions of employment.

The engineer distributed a memo to co-workers raising concerns about various employment practices at Google - sounds like protected activity to me. It also seems pretty clear that he was fired in retaliation for the memo. Per the NYT story, he actually also filed a charge with the NLRB prior to his termination (which would also be protected activity).

In other words, he's got a pretty nice NLRA retaliation claim cooking if he is in fact a covered employee (supervisors are generally not covered and I don't know enough about his work responsibilities to analyze this point). However, even protected conduct may lose its protection if it crosses the line - unfortunately, "the line" is very poorly defined (something like egregious, abusive, malicious, opprobrious, etc.). Google may have a decent defense if it can point to sufficiently inappropriate content in the memo. However, that's a tough burden for employers to clear (as a reminder, sometimes even calling your boss a "motherf*cker" is not enough to lose protection).

Title VII

Title VII prohibits discrimination on the basis of certain protected characteristics, including race and sex. It also prohibits retaliation against employees who oppose workplace discrimination based on those protected characteristics. To state a prima facie case of Title VII retaliation we need: (1) protected activity; (2) materially adverse action; and (3) a causal connection between the two.

Let's go to the memo:
Stop restricting programs and classes to certain genders or races. These discriminatory practices are both unfair and divisive . . . . Discriminating just to increase the representation of women in tech is as misguided and biased as mandating increases for women’s representation in the homeless, work-related and violent deaths, prisons, and school dropouts.
That sounds an awful lot like opposition to discrimination on the basis of race and sex (and, yes, men are just as much a protected class as women under Title VII). So we have element one. He was fired, so that will easily meet element two. And, again, he was pretty clearly fired for the memo, so that's element three.

That does not mean the employee wins though. Google can still prevail by showing that it had a legitimate non-retaliatory reason for the termination. Google could argue that he was not fired for the parts of the memo that opposed discrimination, but rather for the other parts of the memo that allegedly "advanc[ed] harmful gender stereotypes." Disentangling the protected from the unprotected content (and assigning Google's motives accordingly) could prove difficult though.


Based on the information I've seen so far, it sounds like he has some viable claims for NLRA and Title VII retaliation. Call it a hunch, but I think this guy may refuse a confidential settlement and payout to fight this one out in what he perceives as an ideological battle.

Monday, August 7, 2017

D.C. Circuit on Joint Employers (Sort Of)

On Friday, the D.C. Circuit issued its opinion in NLRB v. CNN. One of the issues was whether the NLRB applied the correct joint employer test.

As readers of this blog know, the NLRB announced a new "refined" standard for joint employment in Browning-Ferris. The new test no longer requires the putative joint employer to actually exercise direct and immediate control over the workers - the right to exercise even indirect control will do. In the CNN case, the NLRB applied something like the Browning-Ferris standard. There's just one problem . . . it decided the CNN case before Browning-Ferris.

So, the D.C. Circuit remanded the CNN case back to the NLRB concluding that it had inappropriately applied a new standard without (at the time) having properly considered application of a new standard:
Not official use.
In Browning-Ferris, the Board carefully examined three decades of its precedents and concluded that the joint-employer standard they reflected required “direct and immediate” control. It then criticized that standard. Thereafter, it forthrightly overruled those cases and set forth, as “a new rule” for identifying joint employment, a standard quite similar to the one the Board in the case before us claimed had been the standard all along.This an agency may do, as long as it provides a reasoned explanation for its change of course . . . . 
In the case on review here, however, the Board did none of those things. In characterizing the prevailing joint-employer standard, it did not grapple with its precedents in the manner of Browning-Ferris . . . . 
“[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.” Because the Board crossed that line here, we must set aside its finding that CNN was a joint employer.
(citations omitted). Welp, this sets up the pending appeal (also before the D.C. Circuit) in Browning-Ferris quite nicely. Unfortunately, it doesn't give us much to go on in analyzing joint employment. Even the D.C. Circuit decision in Browning-Ferris may not give us much finality - between a potential SCOTUS appeal, and a new Trump NLRB, the standard may yet evolve further.

Wednesday, August 2, 2017

Third Circuit on Attorney Fired for Refusing to Violate Rules of Professional Conduct

The Third Circuit recently issued an interesting precedential opinion in Trzaska v. L'Oreal USA, Inc.

A patent attorney for L'Oreal (the makeup company) claims that he was pressured to submit patent applications that he "did not in good faith believe were patentable" through a company-imposed quota (the patent team allegedly had an annual minimum number of patent applications). He told the company that filing such bad faith patent applications would violate the Rules of Professional Conduct ("RPCs") that he was bound to adhere to as promulgated by the Supreme Court of Pennsylvania and the U.S. Patent and Trademark Office.

Shortly after the attorney protested the quota, the company offered him two severance packages. After he rejected both of the severance packages, L'Oreal fired him. He filed a lawsuit claiming that he was wrongfully terminated in violation of a New Jersey statute that prohibits retaliation against an employee for refusing to violate a law, rule, regulation, or "clear mandate of public policy" (New Jersey Conscientious Employee Protection Act (“CEPA”)).

The Third Circuit reversed the district court's dismissal of the claim and held that he could proceed with his lawsuit because, "an allegation that an employer instructed, coerced, or threatened its patent attorney employee to disregard the RPCs binding him violates a clear mandate of public policy within the meaning of CEPA." The Court noted both the public interest in patents generally and the RPCs.

Sorry, but I have to call out the Court for this one: "Because his allegations against the beauty-products corporation are more than skin-deep, we reverse." Get it? 'Cause it's a makeup company?

Tuesday, July 18, 2017

Third Circuit on Hostile Work Environment (Is one "n-word" enough?)

Last week, the Third Circuit issued a precedential opinion in Castleberry v. STI Group. It's an interesting opinion, on appeal from a dismissal at the pleadings stage, on the legal standard for hostile work environment claims.

One issue is very clear: the correct standard is that the harassment must be severe or pervasive - meaning that either one very severe event or a slew of not-so-serious events may suffice to state a claim (or, presumably, some combination).
Not official use.

At one point, the Court frames the issue as:
Under the correct “severe or pervasive” standard, the parties dispute whether the supervisor’s single use of the “n-word” is adequately “severe” and if one isolated incident is sufficient to state a claim under that standard.
The Court appears to conclude that, yes indeed, one n-word can be enough. Although, the Court notes that "the resolution of that question is context-specific." Also, strangely, that does not appear to be the actual issue presented by the facts.
Here Plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African- American coworkers. Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred). This constitutes severe conduct that could create a hostile work environment. Moreover, the allegations could satisfy the “pervasive” alternative established by the standard. Plaintiffs alleged that not only did their supervisor make the derogatory comment, but “on several occasions” their sign-in sheets bore racially discriminatory comments and that they were required to do menial tasks while their white colleagues (who were less experienced) were instructed to perform more complex work. Whether these allegations are true and whether they amount to “pervasiveness” are questions to be answered after discovery (for example, after determining how many times racial remarks were scribbled on the sign-in sheets). Plaintiffs have pled a plausible claim of a hostile work environment under either theory—that the harassment was “severe” or “pervasive.”
What if the slur were not accompanied by threats of termination that came to fruition? What if we were at summary judgment instead of the pleadings stage? The Court stops short of holding that one racial slur is always enough - but it came pretty close.

Sidenote: This was a Section 1981 race discrimination in contracts claim - but presumably the same analysis would apply to the more common Title VII discrimination an hostile work environment claims.

Friday, July 7, 2017

PA Supreme Court: Terminated employees do not have the right to view personnel file

Under Pennsylvania's Personnel Files Act:
An employer shall, at reasonable times, upon request of an employee, permit that employee or an agent designated by the employee to inspect his or her own personnel files used to determine his or her own qualifications for employment, promotion, additional compensation, termination or disciplinary action . . . .
43 P.S. § 1322. However, the Act defines "employee" as:
Any person currently employed, laid off with reemployment rights or on leave of absence. The term 'employee' shall not include applicants for employment or any other person.
43 P.S. § 1321 (emphasis added). The text seems to pretty clearly limit the right to view the personnel file to only current employees. Terminated and want to see your file? Tough luck. And, yet, it wasn't that simple.

In 1996, in Beitman v. Penn. Dept. of Labor & Industry, the Commonwealth Court of Pennsylvania held that:
[T]his Court does not interpret the phrase "currently employed" in Section 1 of the Act so stringently as to prohibit an individual from obtaining his or her personnel file when such request is made contemporaneously with termination or within a reasonable time immediately following termination.
Now, maybe it's just me, but I don't consider interpreting "currently employed" to mean somebody who is employed currently as overly stringent . . . that's just reading what the statute actually says. Nevertheless, I advised employers over the years that they probably had to let fired employees see their personnel files. "Ya see, there's this Commonwealth Court case . . . ." I'd say.

Recently, the Supreme Court of Pennsylvania ("SCOPA" - help me make it catch on like "SCOTUS") held in Thomas Jefferson Univ. Hosp. v. Penn. Dept. or Labor & Industry:
Reading the Personnel Files Act according to its plain terms, we conclude that former employees, who were not laid off with re-employment rights and who are not on a leave of absence, have no right to access their personnel files pursuant to the Act, regardless of how quickly following termination they request to do so.
That sounds right to me. A word of caution from the Court though:

[F]ormer employees who believe they have been wrongfully terminated may gain access to their files by filing a lawsuit and seeking the files in discovery.
Furthermore, employers may want to provide fired employees with their personnel files as sort of a "see, there's nothing incriminating in there" to head off litigation.


Thursday, July 6, 2017

DOL finally states its position in overtime regulation litigation

Welp, we finally have the long-awaited reply brief from the Department of Labor in the overtime regulation litigation (HT: Wage & Hour Litigation Blog). What's their position?
The Department has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be. Accordingly, the Department requests that this Court address only the threshold legal question of the Department’s statutory authority to set a salary level, without addressing the specific salary level set by the 2016 final rule . . . . [T]the Department soon will publish a request for information seeking public input on several questions that will aid in the development of a proposal.
That's a tough position for the Court to accept in my opinion. I mean, it's almost like DOL is asking for an advisory opinion . . . don't actually decide the case that's in front of you, just tell us the lower court got the law wrong but don't tell us whether the actual rule that exists right now can go forward.

If the Court accepts the legal reasoning of DOL, then it could very well just lift the injunction. Then what? We have a rule in place that DOL does not support that will only be in place until they can go through the rulemaking process and set a new level? That sounds messy.