Friday, September 28, 2012

Alcohol Rehab - Eighth Time's the Charm? - COTW #111

You have to give the employee in this Case of the Week some credit; he recognized that he has an alcohol problem and is trying to address it. The employer also deserves some credit for generally supporting the employee in his struggle. However, Schmidt v. Pennsylvania Turnpike Commission, 2012 WL 4414005 (Sept. 25, 2012) is a case about an employer who eventually said "enough is enough."

The plaintiff entered seven different rehabilitation programs for alcohol (and sometimes drug) dependency from 1999 to 2008. Unfortunately, none of the programs really worked. The employee had attendance problems resulting in a Last Chance Agreement (LCA). The employee once again entered rehab and was out of work, but this time he did not have approved leave. The employer terminated him, prompting an ADA (applying the ADAAA) lawsuit.

The Court understood the concerns of both the employer and the employee. Ultimately, however, the Court ruled in favor of the employer:
[T]he Court believes that its rulings above can, and should, be informed by the jurisprudence recognizing the untenable position presented by an employee who remains dependent on alcohol or drugs after repeated, unsuccessful rehabilitation attempts . . . . Although providing an employee with an opportunity to rehabilitate himself is consonant with both the law and the greater public good, there comes a point where demanding an employer to offer multiple, if not unlimited, opportunities for recovery veers outside the realm of reasonableness.
The Court had additional concerns, including whether the employee had actually requested an accommodation and whether any breakdown in the interactive process was actually the employer's fault.

The Court commended the employee for his efforts to address his problems. However, the employer won on summary judgment.

HT: The Legal Intelligencer - Pa. Turnpike Worker's Drunk Firing Suit Rejected.

Wednesday, September 26, 2012

NLRB and Social Media Policy Savings Clauses

Yesterday, I provided some Lawffice Links relating to a recent NLRB decision ruling that a social media policy prohibiting defamation was overly broad (the Costco decision). A friend emailed me to remind me that the employer might have been able to save the policy with a "savings clause" or "disclaimer" informing employees of their NLRA rights. A savings clause or disclaimer is just an additional clause stating that the social media policy will not be interpreted or applied so as to prohibit NLRA-protected concerted activity.

The NLRB decision in Costco provides at least two clues that the NLRB places some value on savings clauses. First, the NLRB noted:
[T]here is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.
Hmmm, a savings clause would have done that. The decision also notes:
[T]he Respondent’s rule does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to -- among other things -- certain protected concerted activities, such as communications that are critical of the Respondent’s treatment of its employees.
Again, I think a savings clause would have plugged that hole. However, let's not pretend that savings clauses provide an impenetrable shield - as I blogged previously (over at ELInfonet), such disclaimers have faced challenges of their own.

Tuesday, September 25, 2012

Lawffice Links - NLRB Social Media Ruling Protects Defamation?

The NLRB continues to assault address employers' social media policies with a recent ruling that appears to protect defamation. Huh? The employer's policy prohibited online postings . . . "that damage the Company, defame any individual or damage any person's reputation, or violate the policies outlined in the Costco Employee Agreement."

I baked a fresh batch of Lawffice Links to mark the occasion (warning: employer-side bloggers are not happy):
I have yet to see a strong defense of this decision, but I'm a man of the people . . . got a link to someone who supports the ruling? Drop a comment.

UPDATE: Not really a defense, but Seth Borden hit me on Twitter with his take: National Labor Relations Board Issues First Decision Striking Down Employer's Social Media Policy.

Friday, September 21, 2012

'Reply All' Claims Another Victim - COTW #110

Email 101: Check the recipients (aka the 'To:' field) before clicking 'Send'. Yet we've all received those cringe-worthy emails, clearly intended to be a reply directed to a single individual, but sent to an entire distribution list by an accidental 'Reply All'.

The Case of the Week is Reveles v. Napolitano. The plaintiff alleges that he was terminated for hitting 'Reply All' by mistake:
On or about March 11, 2008, Plaintiff received notice that on January 25, 2008, he had engaged in "misconduct" when he accidentally hit the "Reply to all" icon instead of the "Reply" icon in response to an email sent to his good friend and co-worker stating he was a "kiss-ass" for pointing out a typo in an email originally sent from station administrative supervisor SBPA Bustillos.
Now, he has filed a lawsuit claiming national origin discrimination. The Complaint does not explain why the plaintiff believes he was discriminated against on the basis of national origin.

The punishment sounds a little harsh, but we don't really know the back story. In fact, the Complaint notes that "Plaintiff was placed on a Last Chance Agreement for misuse of a government computer signed on October 3, 2007 (prior to the incident that led to his termination)." In any event, lesson learned - for the 10 millionth time - check the recipients in the emails you send, and be careful with that 'Reply All' button!

HT: Eric Meyer via email.

Thursday, September 20, 2012

Enforceable Pennsylvania Noncompetes Without Consideration?

In Pennsylvania, employers generally must provide employees with consideration to make a noncompete contract enforceable. Furthermore, continued employment is generally not enough. The Legal Intelligencer published an interesting article that makes an argument for enforceable noncompetes with no consideration other than magic words: Noncompetes Supported by 'Intending to Be Legally Bound' Phrase? (subscription required).

The gist of the article is that Pennsylvania has a Uniform Written Obligations Act (UWOA) that provides:
A written release or promise, hereafter made and signed by the person releasing or promising, shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.
 33 Pa. Stat. Ann. § 6 (West). So, can adding the magic words, "intending to be legally bound" really make an enforceable noncompete?

The article provides a number of trial court decisions holding that the UWOA does apply to noncompetes. Most recently, according to the article:
In Latuszewski v. Valic Financial Advisors, No. 03-0540, 2007 WL 4462739, at *1 (W.D. Pa. Dec. 19, 2007), the U.S. District Court for the Western District of Pennsylvania held the UWOA can provide consideration for a noncompetition covenant entered into subsequent to the commencement of the employment relationship.
But be careful - as the article warns: no Pennsylvania appellate court has weighed in on this issue yet, and at least one trial court decision has ruled the other way.

Update: The Pennsylvania Superior Court addressed this issue on May 13, 2014. Read more here

Tuesday, September 18, 2012

Fired for WHAT!? - Saints Fan on Facebook

Do you ever watch your favorite NFL team and think that the referee must be a fan of the other team? Well, apparently (to the surprise of no one) NFL referees are fans of the NFL and sometimes even their hometown team.

The NFL pulled a ref from this past weekend's Saints game because it turns out he is a Saints fan. Anybody want to guess what blew his cover? If you said, "Facebook," then you're today's big winner. His Facebook page included pictures of him tailgating in Saints gear. He also posted that he would be officiating a Saints game, which prompted the reply "Hey, now be nice with those yellow flags for our Saints!!"

Technically, I don't think he was actually fired - just pulled from the Saints game. No doubt, countless fans are now scouring Facebook for "incriminating evidence" on other referees. Maybe somebody should check out the guy who made this phantom pass interference call in the Steelers game. Seriously buddy - what happened?

Monday, September 17, 2012

Miles on Burger King and Religious Accommodations published an article, Burger King Forbids Cashier's Skirt, Faces EEOC Lawsuit. I provided some commentary for the article, including references to cases on point. If the case sounds familiar, that's because it was the Lawffice Space Case of the Week a few weeks ago.

The article mentions a few cases. Here are the citations supporting the assertions in the article:

  • An employer may establish an “undue hardship” under Religious Accommodation analysis by showing that the accommodation would impose more than a “de minimis” cost on the employer. Webb v. City of Philadelphia, 562 F.3d 256, 259-60 (3d Cir. 2009); citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977).
  • “A religious accommodation that creates a genuine safety or security risk can undoubtedly constitute an undue hardship for an employer-prison.” E.E.O.C. v. GEO Group, Inc., 616 F.3d 265, 273 (3d Cir. 2010).
  • 29 C.F.R. § 1605.1 (the EEOC regulation defining sincerely held religious belief).
  • "Costco has made a determination that facial piercings, aside from earrings, detract from the 'neat, clean and professional image' that it aims to cultivate. Such a business determination is within its discretion." Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 136 (1st Cir. 2004).
  • E.E.O.C. v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 (D. Ariz. 2006)(rejecting employer's argument that a uniform exception imposes an undue hardship by harming its "carefully cultivated image" absent evidence of actual harm).
Dress codes and religious accommodations are tricky issues!

Image: logo used in commentary on

Friday, September 14, 2012

Religious Accommodation vs. Collective Bargaining Agreement - COTW #109

The latest employment law Case of the Week features the ultimate smackdown steel cage match of the millennium: religious accommodation vs. collective bargaining agreement (okay, maybe a bit of hyperbole). The Third Circuit recently addressed this issue in Fouche v. NJ Transit, and held that the winner (and still champion) was the collective bargaining agreement.

The employer had an employee who could not work on Sundays for religious reasons. Pursuant to a collective bargaining agreement (CBA), the employees picked their bus-driving schedules based on seniority. The plaintiff in this case was able to choose a schedule that did not include Sundays for awhile. Eventually, however, an employee with higher seniority returned to work and selected shifts that resulted in the plaintiff having to drive on Sundays. The employee could not work on Sundays so was eventually terminated.

Generally, an employer has an obligation to provide reasonable accommodations for the sincerely held religious beliefs of its employees - unless, the accommodation would impose an undue hardship on the employer. In religious accommodation cases, an "undue hardship" is defined as imposing more than a "de minimis" cost.

Here, the Third Circuit issued a short opinion affirming the trial court and holding that:
This accommodation would have placed an undue hardship on New Jersey Transit as Fouche's election not to drive on certain Sundays would have resulted in a breach of the seniority provision of the union's collective bargaining agreement, thus raising a legal issue.
I think the bottom line here is that a religious accommodation that requires breaching a CBA probably constitutes an "undue hardship."

Tuesday, September 11, 2012

Remember that Professor Who Compared 9/11 Victims to Nazis?

Remember Ward Churchill? He is best known for his "scholarly" work calling the people killed in the World Trade Center on 9/11 "little Eichmanns" (this Eichmann, the Nazi). The University of Colorado subsequently investigated him and found that he had plagiarized writings, fabricated research, and falsified academic writings. So, they fired him. Specifically, the Board of Regents voted to terminate him.

Here it is, September 11, and coincidentally I'm writing about Ward Churchill. Why? He claimed he was terminated in retaliation for his First Amendment-protected speech. Yesterday (coincidentally?) the Colorado Supreme Court handed Ward Churchill the latest in a series of losses, in Churchill v. Univ. of Colorado at Boulder.

The Colorado Supreme Court was kind enough to issue its opinion with an "Advance Sheet Headnote" (which seems akin to the SCOTUS Syllabus), including this concise summary:
The supreme court affirms the court of appeals and the trial court, both of which held that Professor Ward Churchill was not entitled to any of the remedies that he sought. Churchill brought a claim under 42 U.S.C. § 1983 claiming that the University of Colorado at Boulder opened an investigation into his academic integrity in retaliation for the publication of a controversial essay, and that both the investigation and resulting termination of his employment violated his free speech rights. The proceedings against Churchill took more than two years and included five separate opportunities for Churchill to present witnesses, cross-examine adverse witnesses, and argue his positions. It possessed the characteristics of an adversary proceeding and was functionally comparable to a judicial proceeding. Hence, the supreme court holds that the Regents’ termination proceeding was a quasi-judicial proceeding, and the Regents are entitled to absolute immunity.
According to the National Law Journal, Churchill's attorney claims he's taking his case all the way to the U.S. Supreme Court. We'll see . . . .

Image: Ward Churchill speaking at the Bay Area Anarchist Book Fair; Wikimedia Commons - Licensing Information.

Fired for What!? - Full Moon Fever

This is a story about a banking executive whose bad judgment cost him millions of dollars. Well, that hardly sounds interesting . . . . but wait, it's the way he lost it that makes it entertaining. When two people send me the same Fired for What!? tip, I have to oblige them (I'm a man of the people, after all).

The Bank of America executive in this story burst into a conference room full of executives from a company with which BOA was merging to speak his mind. As it turns out, he didn't have a whole lot to say. Instead:
Selch asked if he had a non-compete agreement, which on Wall Street is usually a way of threatening to quit and go to work for a competitor. After the executives said he didn't have a non-compete, Selch mooned them, told one of the New York-based executives never to return to Chicago, and left the meeting.
Pro tip: It's almost never a good idea to take your pants off at work.

Astonishingly, his boss didn't see a need to terminate him. Eventually, the powers that be made sure he was fired. The executive lost millions because his bonus package had not yet vested at the time of the termination.

The executive filed a breach of contract lawsuit, claiming that his termination was not "for cause." I'm guessing his contract did not have a one-free-mooning clause (something I'll keep in mind when drafting contracts in the future). The Court rejected his argument on summary judgment and an appellate court agreed.

HT: Donnell Thompson and Derek Bottcher (.vcf).

Lawffice Space Trivia: Donnell was my roommate freshman year at Penn State. I originally planned to call Lawffice Space, "Emplawyer" - it turns out Emplawyer was not even remotely original or clever, and had been used by a ton of different sites. I turned to Facebook to ask my friends what I should call the blog - Donnell came up big with "Lawffice Space."

Friday, September 7, 2012

3d Circuit Addresses FMLA Issues - COTW #108

The Third Circuit recently delivered a 44-page precedential opinion on a number of FMLA issues in Lichtenstein v. UPMC.

Mixed Motive FMLA Claims

After Gross v. FBL killed "mixed motive" analysis in favor of a "but for" standard for ADEA claims, come wondered whether the same thing would happen to FMLA claims. The Third Circuit lined up the issue . . . wait a second . . . it's a punt! Yup, they punted on the issue. They did include some hints about how they might rule, noting:
Although some courts have recently questioned the viability of mixed-motive claims under the FMLA in the wake of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2349 (2009), the only federal court of appeals to rule on the issue has held that Gross does not preclude FMLA mixed-motive claims. See Hunter v. Valley View Local Sch., 579 F.3d 688, 692 (6th Cir. 2009). The Department of Labor has taken a similar position, stating its view in an amicus brief that the FMLA continues to allow mixed-motive claims.
The Court found that the plaintiff could meet a higher standard, so no need to decide whether to use the lower standard. FYI - I covered Hunter back in 2009. I guess we'll have to wait for a final verdict.

Low Bar for Notice

FMLA plaintiffs must provide adequate notice to their employers of the need to take FMLA leave. The Court set a really low bar on summary judgment for adequate notice. In this case, the employee conveyed only that her mother was in the hospital, was taken there by ambulance, and she would be unable to work that day.
The question is whether the information allows an employer to “reasonably determine whether the FMLA may apply.” 29 C.F.R. § 825.303(b) (emphases added). Reasonableness does not require certainty, and “may” does not mean “must.” It does not matter that a person rushed by ambulance to the emergency room “might not” require inpatient care as defined under the FMLA. Since many people in this situation do require such care, a jury might find that reasonable notice was given under the circumstances.
The Court did not hold that the notice was adequate, only that a juror could reasonably conclude that it was adequate (which is enough to survive summary judgment).

Causation - Temporal Proximity

I don't think the Court broke any new ground in its legal analysis here. But they did provide a nice example of analysis regarding factual disputes at the summary judgment stage. Specifically, the Court addressed disputes over when the employer knew about the FMLA leave and when it took adverse action.

There were a few other issues packed into the Court's opinion. If you're interested in FMLA issues, it is definitely worth a read.

Thursday, September 6, 2012

My Appearance on The Proactive Employer Now Available

As I blogged previously, I appeared on The Proactive Employer today to discuss the Most Challenging/Embarrassing/Bizarre HR Questions with an all-star panel of employment law bloggers. I had a great time, and we may have even managed to dispense some useful information.

If you are on my website, you can play the episode on the embedded player here:

Listen to internet radio with TheProactiveEmployer on Blog Talk Radio

Don't see the player? Click here to listen online.

Live! Today! I'll be on The Proactive Employer webcast.

The Proactive Employer
Hosted by Stephanie Thomas
of Thomas Econometrics
Tune in to The Proactive Employer at 3:00 EST today to hear Your Most Challenging and Bizarre HR Questions Answered! We'll be covering some great issues, such as smelly employees, street drugs, and employees in Playboy. I will be joined by some of the best employment law bloggers in the game: Jon Hyman, Robin Shea, and Eric Meyer. Stephanie Thomas hosts. Tune in, and call in if you have a question.

Disclaimer: We will not be issuing legal advice, but discussing challenging issues for entertainment and educational purposes. If you seek real legal advice, contact an attorney who will research your question, be familiar with your jurisdiction, and not just give you off-the-cuff banter on a call-in show.

Wednesday, September 5, 2012

EEOC Releases Draft Strategic Enforcement Plan

The EEOC released its draft Strategic Enforcement Plan yesterday. I'll highlight the three things that I found the most interesting.

First, the document identifies "emerging issues":
ADA Amendments Act issues, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity; 
LGBT (lesbian, gay, bisexual and transgender individuals) coverage under Title VII sex discrimination provisions, as they may apply; 
Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.
Title VII does not expressly protect sexual orientation, and the Pregnancy Discrimination Act/Title VII does not expressly require reasonable accommodations for pregnant employees. Perhaps these "emerging issues" are a signal that the EEOC will seek to expand Title VII's coverage through agency enforcement where traditional legislative efforts have thus far failed (see, Pregnant Workers Fairness Act and ENDA).

Second, the EEOC plans to address waiver and settlement issues:
The EEOC will also target policies and practices intended to discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts. These policies or practices include retaliatory actions; overly broad waivers; settlement provisions that prohibit filing charges with EEOC or providing information in EEOC or other legal proceedings; and failure to retain records required by EEOC regulations.
Drafting waivers and settlements in discrimination matters is one of the trickiest things an employment lawyer does. On the one hand, I look forward to the guidance. On the other hand, it might just be one more twist or turn in an already difficult process.

How do they come up with these priorities anyway? Glad you asked - Third, and finally, the EEOC listed its criteria for selecting priorities:
1. Issues that will have broad impact because of the number of individuals or employers affected; 
2. Issues involving developing areas of the law, where involvement by the leading governmental agency charged with enforcing employment anti-discrimination laws is appropriate; 
3. Issues affecting workers who may lack an awareness of their legal protections, or who may be reluctant or unable to exercise their rights; 
4. Issues involving discriminatory practices that impede or impair full enforcement of employment anti-discrimination laws; and 
5. Issues that may be best addressed by the EEOC given its access to data and research
I just highlighted the areas I found most interesting, but the whole thing is worth a read. Also, this is just a draft . . . for now. If you have any thoughts on the plan, the EEOC would love to hear from you.

Image: EEOC seal used in commentary on EEOC. Not official use.

Benchslap: Reinstating Sexual Harasser is "Absurd"

The Supreme Court of Pennsylvania dished out a benchslap to an arbitrator who reinstated a sexual harasser under the terms of a Collective Bargaining Agreement (CBA). The case is Phila. Housing Authority v. AFSCME. The allegations contain adult content, so earmuffs kids (am I the only one who still quotes Old School ad nauseum?):
Broadnax testified about Mitchell’s numerous sexually explicit comments and actions toward her, which began in 2001 and continued into 2002. She described acts of inappropriate touching and sexual comments made by Mitchell, which caused her discomfort, particularly when she and Mitchell were alone. She described one particularly egregious incident where Mitchell grabbed Broadnax from behind while she was filing paperwork, “grinding” himself into her for approximately 15 seconds. Another incident involved Mitchell hiding under a desk to “take a nap” and then asking Broadnax if he could “eat her pussy” while she worked. Mitchell would hug Broadnax, throw his arms around her neck, and “play with himself” while speaking to her; he made her “upset and nervous.” Broadnax testified that she also witnessed Mitchell pinch the breasts of the other female warehouse employee.
Ummm, yeah, that's generally frowned upon. The employer terminated the harasser, but the case went to arbitration under the CBA pursuant to the Pennsylvania Public Employe Relations Act (PERA, and yes there is only one "E" at the end of employe).

The arbitrator believed the accuser, and found that the harasser engaged in "lewd, lascivious, and extraordinarily perverse" conduct. Astonishingly, the arbitrator then found that the employer did not have "just cause" as required by the CBA because the harasser essentially ceased his perverse conduct after receiving a verbal warning. The award reinstated the employee and awarded him back pay.

The Pennsylvania Supreme Court was having none of that. Noting clear public policy against sexual harassment in the workplace (like Title VII and the PHRA), the Court held:
The absurd award here makes a mockery of the dominant public policy against sexual harassment in the workplace, by rendering public employers powerless to take appropriate actions to vindicate a strong public policy. Such an irrational award undermines clear and dominant public policy.
Tell us how you really feel? Needless to say, the Court vacated the arbitration award.

HT: Eric Meyer via The Employer Handbook.

Monday, September 3, 2012

Fired for What!? - The Cardboard Cutout Dime Caper

Richard Eggers was convicted of operating a coin changing machine by false means, and it recently cost him his job at Wells Fargo. Specifically, he used a cardboard cutout dime in a washing machine . . . in 1963!

Why would an employer fire somebody for a nearly 50-year old crime? If you suspect there's more to the story, then you are correct:
Big banks have been firing employees due to new federal banking and mortgage employment guidelines. They're meant to weed out employees guilty of identity theft and mortgage fraud but are being applied across-the-board because of a possible $1-million-day-fine for noncompliance.
As another article on this story explains:
The regulatory rules forbid the employment of anyone convicted of a crime involving dishonesty, breach of trust or money laundering.
There are waiver procedures, so maybe Mr. Eggers will one day be cleared for duty. There is also a fast-track waiver for people who have not served jail time, but Mr. Eggers spent two days jail for the cardboard cutout dime caper so he is not eligible. The law of unintended consequences strikes again!

HT: Derek Bottcher, Cooley LLP (.vcf) via email.