Monday, December 4, 2017

MORE Miles on Service Animals and the ADA

Great news! Bloomberg BNA used some of my interview for a second piece on the ADA implications of service animals in the workplace: Helping Workers Who Rely on Animals Without Making a Mess. Enjoy!

Friday, December 1, 2017

Miles on Service Animals and the ADA

Straight from the Department of Shameless Self-Promotion: Quiet, Dogs at Work: Why You May Soon Be Clocking In With Fido by Patrick Dorrian, Bloomberg BNA (featuring quotes from yours truly). Enjoy!

Wednesday, November 22, 2017

Transgender Prof wins $1.1 Million Jury Verdict

Just cranking out one last pre-Thanksgiving blog post here. Transgender university professor, Rachel Tudor, won a $1.1 million jury verdict in her employment discrimination case on Monday.

We're still in this awkward place where Title VII does not list "gender identity" (or "sexual orientation"), but some courts are interpreting the prohibition on "sex" discrimination to cover those classes. DOJ says they're not covered (after previously saying they were covered and initially being a plaintiff in the Tudor case). Meanwhile, the EEOC (at least for now) says they are covered. Meanwhile, some states expressly cover them, while some states do not but local ordinances do. Of course, transgender and homosexual employees at public universities may be protected under the Equal Protection Clause of the United States Constitution.

Confused yet? I anticipate federal legislation or a Supreme Court decision to decide this issue with regard to Title VII in the next few years.

Wednesday, November 15, 2017

Precedential decision on social media and unemployment compensation

On Monday, the Commonwealth Court of Pennsylvania issued a precedential decision in Waverly Heights, Ltd. v. UCBR. The employer argued that the unemployment compensation claimant was terminated for "willful misconduct," which would disqualify her for UC benefits, for the following tweet:
@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!
The employer first argued that the tweet violated its policy:
[Employer] has an interest in promoting and protecting its reputation[,] as well as the dignity, respect, and confidentiality of its residents, clients, and employees as depicted in social medial, whether through [Employer’s] own postings or that of others. Towards that end, [Employer] will actively manage the content of its social media sites to uphold the mission and values of the company. Also, [Employer] expects employees who identify themselves with [Employer] in either internal or external social media to conduct themselves according to this policy.
The Court rejected this argument, finding that she did not "identify" herself with the employer. The employee did not identify the employer in the tweet. The employer argued that it was easy to find out who she worked for, and that she followed the employer's Twitter account (and therefore appeared in her list of accounts she follows). That was not enough.

In a last ditch effort, the employer lobbed a few Hail Mary's - For example, that she conducted the informal survey on work time. No dice. There was no evidence that she conducted it on work time, and routine conversations about current events would not be willful misconduct in any event.

Maybe it was willful misconduct because it was racist (specifically referencing AA employees and targeting them for the survey)? Nope. First, the employee claims "AA" referred to administrative assistants. Second, the tweet says she surveyed "our employees" not just the "AA" employees.

Final ruling: The employer did not meet its burden of establishing willful misconduct and the employee is eligible for UC benefits. Note that nothing in this decision relates to whether the employer had a right to terminate the employee - just whether she received UC benefits.

Questions I had: The format of the tweet suggests that it is a "Reply" - meaning that the claimant was directly responding to a tweet from now-President Trump. What did that tweet say? What were the trending topics? Was there additional conversation around the same time on Twitter? These contextual clues could give us a better understanding of the claimant's tweet.

Tuesday, November 14, 2017

High school friends win Equal Pay Act case

The law can get complicated . . . and then there's this case, which, according to the EEOC press release, is pretty straightforward:
[T]wo high school friends, Jensen Walcott and Jake Reed, applied to work at Pizza Studio as "pizza artists" in 2016. After both were interviewed and offered jobs, Walcott and Reed discussed their starting wages. Upon learning that Reed was offered 25¢ more per hour, Walcott called the restaurant to complain about the unequal pay. When she did so, the company immediately withdrew its offers of employment from both Walcott and Reed.
Not official use.
EPA claims can get pretty tricky because employers have so many different factors they can point to when trying to justify pay disparities. I suspect there are fewer defenses available when the plaintiff is a high school-level "pizza artist" (and the retaliation sounds pretty blatant). In any event, what did they win?
Federal District Judge Carlos Murguia's order awards both Walcott and Reed back pay for lost wages as well as liquidated, compensatory, and punitive damages . . . .today's order also requires [Defendant] to implement significant policy changes, conduct training, collect and analyze pay and other data, and report data and complaints to the EEOC, each in order to prevent future violations of the law.
The EEOC press release also reminds us about their priorities identified in the Strategic Enforcement Plan:
1. Eliminating Barriers in Recruitment and Hiring.
2. Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination.
3. Addressing Selected Emerging and Developing Issues.
4. Ensuring Equal Pay Protections for All Workers.
5. Preserving Access to the Legal System.
6. Preventing Systemic Harassment.

Friday, November 10, 2017

O'Reilly's alleged "proven in court" clause

With all of the sexual harassment allegations flying around the media and entertainment industries, I've been trying to pickup tidbits that relate to law (and contracts). One story that stuck out to me was: O’Reilly Contract Barred Fox From Firing Him Unless Claims Proven In Court. According to testimony from an "Independent Director of 21st Century Fox," there was "an employment agreement with Bill O’Reilly which stated he could not be dismissed on the basis of an allegation unless that allegation was proved in court."

In retrospect, it's easy to see how this could allow a serial sexual harasser to keep his job so long as no litigation or criminal charges were ever taken all the way to trial and proven in court. That's a problem. However, at a high level, job security is one of the primary reasons people sign employment contracts to begin with.

Generally, employees serve "at will" and can be terminated for any reason at all (so long as that reason is not specifically prohibited by law or public policy) or even no reason. A contract is a way to afford greater security, whether it's the multi-millionaire pundit or the union member with a CBA.

In fact, good luck finding a CBA that does not require "just cause" for terminating employees, along with a grievance procedure that ends in arbitration. Is a "prove it in arbitration" clause really that different from a prove it in court clause?

Ultimately, requiring allegations to be proven in court prior to termination may be too high of a bar (and most employers would not want that burden). However, it is not at all uncommon for employees to insist on some type of contractual due process prior to termination; and, it's a benefit many employers are willing to provide to secure labor. We shouldn't lose sight of that when considering these issues.

Thursday, November 2, 2017

Fired for What!? - iPhone X footage

Employers often have a special interest in protecting information as confidential. For example, lawyers owe their clients a duty of confidentiality, Coke has the textbook trade secret example of the "secret formula," and tech gadget companies protect their product development.

Unfortunately, sometimes protecting those secrets leads to harsh results. One such example: Apple fires iPhone X engineer after daughter’s hands-on video goes viral (daughter's tearful response video included). Short version: daughter visits dad at Apple campus and records footage of the unreleased iPhone X; she posts it to YouTube; it goes viral; and Apple fires dad.

You have to feel a little bad for the father-daughter duo. That said, it should be common sense (and, apparently, formal Apple policy) that employees can't have guests recording video of unreleased products. It's generally a good idea for employers with confidential information to have confidentiality agreements with employees and emphasize the importance of protecting that information.