Wednesday, April 27, 2016

SCOTUS: Mistaken retaliation is still retaliation under First Amendment

Yesterday, the Supreme Court issued its opinion in Heffernan v. City of Patterson.

A police officer picked up a campaign sign featuring a candidate who was particularly unpopular in his department. Some of his co-workers spotted him and he got demoted the next day. But wait! It was all a big misunderstanding! He was actually just picking up the sign for his bed-ridden mother.

Generally, a First Amendment claim requires (1) protected speech; (2) a materially adverse action; and (3) a causal connection between the two. Here, it appears that the police office never really engaged in any "protected speech" because he was just picking up the sign for someone else.

Both the majority (by Justice Breyer) and the dissent (Justice Thomas) have logical arguments. Of course, it's the majority opinion that counts:
[T]he government’s reason for demoting [the police officer] is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.
The counterargument, per Justice Thomas (joined by Justice Alito) in dissent:
Today the Court holds that a public employee may bring a federal lawsuit for money damages alleging a violation of a constitutional right that he concedes he did not exercise. Because federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated, I respectfully dissent.
The majority reversed the Third Circuit decision, which I covered here (embarrassingly declaring "game over"... not expecting SCOTUS review). I'm not sure how often this situation will arise in the future (my hunch is that it is pretty uncommon), but we will
know how to analyze it now.

Thursday, April 21, 2016

Curt Schilling, ESPN, Free Speech and quirky state laws

As you have probably already heard, ESPN fired Curt Schilling - presumably for sharing a Facebook post (screen grab here) that mocked transgender people and commenting that "A man is a man no matter what they call themselves" and "Now you need laws telling us differently? Pathetic."

Any free speech issues? I covered a lot of this ground in an article regarding Phil Robertson (the Duck Dynasty guy) and his dust-up with A&E. In short, the First Amendment generally only applies to state actors. It has some teeth in the context of public employment... but not so much with ESPN.
ESPN logo used in commentary
on ESPN.

But wait... ESPN is in Connecticut! Why does that matter? Because Connecticut has this law that prohibits "discipline or discharge" for exercising First Amendment rights, and it applies to private employers! However, that law comes with a pretty big caveat: "provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer."

As my favorite Connecticut employment law blogger, Dan Schwartz, noted on Twitter:
Did Schilling's post address a matter of public concern? I think so - I mean, he specifically references "laws" and he's presumably referring to the public debate over North Carolina's bathroom law. Was he disrupting the workplace? I don't work there, so I don't know - seems at least plausible. We'll see how this plays out.

Of course, these issues may also be addressed in an individual contract between the parties. Also, I suppose it's possible that Schilling is based somewhere else and is not covered by the CT law.

Tuesday, April 19, 2016

Pennsylvania's New Medical Marijuana Law Includes Employment Protections

On Sunday, Pennsylvania Governor Tom Wolf signed a new medical marijuana legalization bill into law. You can read the full text of the law, Senate Bill 3, here. Of interest to Lawffice Space readers, the new law contains some employment provisions.

The gist of these provisions is that employers may not discriminate or retaliate against employees who are "certified to use medical marijuana" - not to be confused with recreational users. Employers are not required to allow marijuana use on their property or place of employment. Employers may still discipline employees who are under the influence in the workplace . . . "when the employee's conduct falls below the standard of care normally accepted for that position." Finally, the employer does not have to do anything that would violate federal law.
Unrolled marijuana joint. Public domain.

It is not clear (at least it is not clear to me yet) what happens if an employer violates these rules. I can only imagine litigating the issue of whether the employee can satisfactorily perform his or her job while stoned. In any event, here are the relevant provisions:
Section 2103  
(B) Employment.  
(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana.  
(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer's ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee's conduct falls below the standard of care normally accepted for that position.  
(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.

Monday, April 18, 2016

You Must be Christian to Work on Noah's Ark

If you ever wanted to visit a life-sized replica of Noah's Ark, then you'll soon have a chance at the Ark Encounter in Kentucky. If you want to work on the Ark, then you must be Christian. Wait... what about Title VII's prohibition on religious discrimination in employment?

It turns out that the Ark Encounter effectively obtained pre-approval to utilize the "ministerial exception" to Title VII. In Ark Encounter, LLC v. Parkinson, a federal court decided a non-employment issue, relating to tax incentives:
Noah's Ark (1846) by Edward Hicks (public domain).
[I]f a tourist attraction, even one that as described here "advances religion," meets the neutral criteria for tax incentives offered by the Commonwealth of Kentucky, can the Commonwealth still deny the incentive for Establishment Clause reasons? This opinion is long but the answer to that question is short -- no.
Where does Title VII come in? Kentucky argued that Ark Expedition's religious preferences in hiring justified the denial of tax incentives. The Court held that Ark Expedition had the right to engage in such hiring practices due to an exception in Title VII:
This subchapter shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. 42 U.S.C. § 2000e-1(a).
The "ministerial exception" includes some easy cases. For example, the Catholic Church can obviously insist that its priests be Catholic. But what about an amusement park like the Noah's Ark Encounter?
"[I]n order to invoke the exception, an employer need not be a traditional religious organization such as a church, diocese, or synagogue, or an entity operated by a traditional religious organization." Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 834 (6th Cir. 2015) (internal citations and quotation marks omitted). The institution must be a "religiously affiliated entity . . . whose mission is marked by clear or obvious religious characteristics." Id. (internal citations and quotation marks omitted). The applicability of this exception does not need to be tied to an actual church or a particular denominational faith but "applies to multidenominational and nondenominational religious organizations as well." Id.
Here, the group behind the Noah's Ark exhibit, is "clearly a religious organization with a particular religious mission." So, it qualifies for the religious exemption.

That was a nice little double-win for the Ark Encounter . . . it qualified for the tax incentives while effectively obtaining pre-approval for its religious preferences in hiring.

Tuesday, April 12, 2016

Are employee handbooks legally binding contracts in Pennsylvania?

Can an employee sue his or her employer based on a breach of the terms of an employee handbook or manual? Law101: The answer to every question is always, "it depends."

Generally, the answer to this question is "no" - but with the qualifier that... wait for it... "it depends." Ordinarily, I wouldn't rely on an unpublished federal trial court opinion for state law issues, but I particularly like this summary (and it relies on published Pennsylvania appellate court opinions):
[W]e note that "the presumption under Pennsylvania law is that all employment is at-will, and, therefore, an employee may be discharged for any reason or no reason." Luteran v. Loral Fairchild Corp., 688 A.2d 211 (Pa. Super. Ct. 1997). The burden of overcoming the presumption rests squarely with the employee. Rutherford v. Presbyterian-University Hospital, 612 A.2d 500 (Pa. Super. Ct.1992). In order to rebut the presumption of at-will employment, a party must establish one of the following: (1) an agreement for a definite duration; (2) an agreement specifying that the employee will be discharged for just cause only; (3) sufficient additional consideration or (4) an applicable recognized public policy exception. Luteran.  
The Supreme Court of Pennsylvania in Luteran stressed that when alleging that an employee handbook created an implied contract, the handbook must contain a clear indication that the employer intended to overcome the at-will presumption. Moreover, courts should not presume that the employer intended to be legally bound by distributing the handbook nor that the employee believed that the handbook was a legally binding instrument. Id. The court stated that absent any language that the handbook was intended to be a legally binding contract, it could not hold that the employer intended to form a contract. This was in spite of the fact that the handbook stated that an employee "may only be discharged for just cause."
Consolmagno v. Home Depot, No. 06-1097 (W.D. Pa. 2006).

In other words, the courts generally assume that a handbook is not a contract "absent any language that the handbook was intended to be a legally binding contract." As a practical matter, as someone who has seen dozens of employee handbooks, I'll note that:

  • I have never seen an employee handbook that says, "this is totally a contract" or anything even remotely resembling that; and
  • Almost every handbook I've seen says the exact opposite, "THIS IS NOT A CONTRACT." (with varying degrees and combinations of obnoxious bold, all caps, underlined, and super-sized text).
Employers may wish to consider adding such a disclaimer to their handbooks. As an employer, would you rather go into court and ask it to apply a presumption? Or ask it to apply both the presumption *and* the text of the disclaimer? That's a no-brainer. I often draft or revise handbooks, and the "this is not a contract" disclaimer goes in every one. 

For Ohio law on this issue, check out Jon Hyman's Ohio Employer Law Blog

Friday, April 8, 2016

Meyer and Miles on Social Media and Litigation

Go ahead and add to the list of great M and M acts... Eminem, M&M's, Mork and Mindy... and, now, Miles and Meyer. Eric Meyer (of The Employer Handbook fame) and I will be presenting on Social Media and Litigation at the PBA Civil Litigation Section Retreat in Lancaster, PA this weekend.

I prepared a document, including case excerpts, helpful articles, and guidance: Social Media and Litigation. It addresses discovery, ethics, preservation, and authentication, with some emphasis on Pennsylvania law. Enjoy!

Thursday, April 7, 2016

Pennsylvania Gov. Tom Wolf to Sign Sexual Orientation & Gender Identity Anti-Discrimination Executive Order

Pennsylvania Governor Tom Wolf will reportedly "sign an executive order to prohibit discrimination by state contractors against people who are lesbian, gay or transgender." I have not seen the actual order yet, but Gov. Wolf posts his executive orders here - so keep an eye out.
Gov. Wolf

Employers that discriminate against employees on the basis of sexual orientation or gender identity are playing a dangerous game. Many states, unlike Pennsylvania, prohibit such discrimination. Here in Pennsylvania, we do have municipalities with anti-discrimination ordinances that cover sexual orientation and gender identity; and, state employee and state contractors will be covered by executive orders.

On the federal level, you have the EEOC's argument that Title VII's prohibition of sex discrimination already covers sexual orientation and gender identity. Throw in some courts protecting employees under a "gender stereotyping" theory that sounds an awful lot like protection for sexual orientation; and courts protecting transgender employees under Title VII.

Sure, employers can still make the argument that "sexual orientation" and "gender identity" are not expressly covered under Pennsylvania's state law (PHRA) or Title VII... but it's not clear how far that will get them.