Category Archives: Termination

Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly.  The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.

There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

REMINDER: Connecticut Employers Must Provide Rebuttal Opportunity For Employee Discipline

There is one aspect of Connecticut employment law that some Connecticut employers overlook …

Connecticut General Statute §31-128e(b) requires employers include in any

  • documented disciplinary action,
  • notice of termination of employment or
  • performance evaluation

a “statement in clear and conspicuous language” that informs the employee that he has the right to “submit a written statement explaining his position” should the employee disagree with any of the information contained therein.

This “rebuttal statement” must be kept in the employee’s personnel file and accompany the document that it is rebutting should that document be disclosed to any third party.  In other words, the rebuttal statement essentially becomes a part of the the write-up, evaluation or notice of termination.

It is recommended that all Connecticut employers review the forms used for employee discipline, performance evaluation, and termination and verify that the required language is present.  If it isn’t, be sure to add the required language.

NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.

In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.

Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week.  The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months.  The next day, the employee was terminated.  The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position.  The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

NEW LAW — Massachusetts Restricts Non-Compete Agreements

On August 3, 2018, Massachusetts governor Charlie Baker signed the Massachusetts Noncompetition Agreement Act (see Section 24L)  into law.  This new law, which goes into effect on October 1, 2018, places new limitations on non-compete agreements between employers and employees.

First, under the new law employers are prohibited from entering into post-termination non-compete agreements with the following types of employees:

  • Non-exempt employees,
  • Employees who are terminated without cause (including as a result of a layoff),
  • Interns and
  • Minors.

For all other employees , the scope of any non-compete agreement is limited as follows: Continue reading NEW LAW — Massachusetts Restricts Non-Compete Agreements

California Employers — Watch Out For These Common Wage And Hour Problems

California’s wage and hour laws are complicated and is constantly changing.  As a result, employers often find themselves running afoul of one (or more) of these laws and facing potential liability.

To mitigate your risk of a wage claim, we recommend that employers regularly audit their wage and hour practices to ensure compliance with California law.  When conducting this audit, make sure you have a clear understanding of the following common problems relating to compensating non-exempt employees:

Overtime And Double Time For Non-Exempt (Hourly Paid) Employees

  • California employers must pay overtime (1.5 times the employee’s regular rate of pay) to non-exempt employees as follows:
    • For all hours worked over eight hours in a workday or 40 hours a week
    • The first 8 hours worked on the 7th consecutive day of work in a workweek
  • California employers must pay double time (2 times the employee’s regular rate of pay) to non-exempt employees as follows:
    • For hours worked over 12 hours in any workday
    • For hours worked over 8 hours on the 7th consecutive day of work in a workweek

Calculating The Regular Rate Of Pay

  • The regular rate of pay is the employee’s actual rate of pay, which includes the employee’s regular hourly earnings (i.e. hourly rate of pay) plus any additional compensation that must be included in the regular rate of pay – including:
    • Commission payments;
    • Piece rate payments;
    • Non-discretionary bonuses (e.g. productivity bonus, performance bonus, attendance bonus, longevity bonus, cost-of-living bonus);
    • Awards or prizes won for quality, quantity or efficiency;
    • Shift differentials;
    • Premiums paid for hazardous, arduous or dirty work;
    • Non-cash wages in the form of goods, board, or lodging;
    • Pay for non-productive work hours (e.g. rest breaks, waiting time, attending meetings); and
    • Lump sum on-call payments.
  • Payments excluded from regular rate of pay:
    • Premium (or extra) pay for daily or weekly overtime;
    • Premium pay for work on weekends, holidays, regular days of rest or the sixth or seventh day of the workweek (if it is at least 1.5 times the rate for work performed during non-overtime hours on other days);
    • Premium pay for work outside the agreed to hours (if it is at least 1.5 times the rate for work performed during the agreed to hours);
    • Discretionary bonuses;
    • Gifts;
    • Certain payments that are not made as compensation for hours of work (e.g. vacation pay, paid time off, sick time, and reimbursement for business expenses);
    • Payments to a bona fide profit-sharing plan or trust or a bona fide thrift or savings plan;
    • Irrevocable contributions to employee health and welfare plans; and
    • Certain stock options, appreciation rights and purchase programs.

Split Shift Premiums

  • Under the split shift premium rule, an employee must receive one hour’s pay at no less than the minimum wage rate for the time between shifts.  An employer can use any hourly amount the employee earns above minimum wage to offset the split shift requirement.

Reporting Time Pay

  • “Reporting time pay” is partial compensation for employees who report to work expecting to work a specified number of hours and who are deprived of that amount because of inadequate scheduling or lack of proper notice by the employer. The provisions of the law regarding reporting time pay are as follows:
    • Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day’s work, he or she must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay.
    • If an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.

Rest Periods

  • Employers are required to provide a 10-minute, duty-free rest break during each period of four hours (or major fraction thereof, i.e. 2 hours) worked by an employee.  Employers are not required rest periods when an employee’s total daily work time is less than 3½ hours.  This means that employees are entitled to rest periods as follows:
    • An employee who works more than 3½ hours and up to 6 hours is entitled to 1 rest period
    • An employee who works more than 6 hours and up to 10 hours is entitled to 2 rest periods
    • An employee who works more than 10 hours and up to 14 hours is entitled to 3 rest periods
    • An employee who works more than 14 hours and up to 18 hours is entitled to 4 rest periods

Meal Periods

  • Any employee who works more than five hours in a day must be provided with a 30-minute unpaid, duty free meal period.   The meal period must be provided no later than the end of the employee’s 5th hour of work (in other words, before the start of the employee’s 6th hour of work).
    • If an employee’s entire workday is completed in six hours or less, the meal period may be waived by mutual consent of the employer and the employee. This consent should be in writing and signed by both the employee and the employer. If the employee’s workday is more than 6 hours, then the meal period cannot be waived.
  • Any employee who works more than ten (10) hours in a day must be provided with a second unpaid, duty free meal period, also at least 30 minutes in duration. The second meal period must begin no later than the end of an employee’s 10th hour of work (i.e. before the employee works more than 10 hours).
    • If the total workday is 12 hours or less, the second meal period may be waived by mutual consent of the employer and employee, but only if the first meal period was taken. If an employee works more than 12 hours in a day, the second meal period may not be waived (except employees in the health care industry may voluntarily waive their second meal period after 12 hours).

Timekeeping Requirements

  • Employers must record the beginning and end of each workday and the beginning and end of unpaid meal or other unpaid periods.

Wage Theft Protection Act Notice

  • All non-exempt employees must be provided with a Wage Theft Prevention Notice at time of hire and within 7 days of a change.  A sample notice is available here.

Cellphone Reimbursement (** also applies to exempt employees)

  • Employers must reimburse employees who use personal cellphones for business purposes for both voice and data fees incurred for business purposes.

Paid Sick Leave (** also applies to exempt employees)

  • Employers must provide employees with paid sick leave in accordance with state or, if applicable, local law.

Pay Stub Requirements (** also applies to exempt employees)

  • Employers must provide all employees with an itemized statement of wages that includes the following information:
    • Gross wages earned;
    • Total hours worked by the employee (not required for salaried, exempt employees);
    • For piece-rate employees, the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, and the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, the rate of compensation, and the gross wages paid for that time during the pay period;
    • All deductions (all deductions made on written orders of the employee may be aggregated and shown as one item);
    • Net wages earned;
    • The inclusive dates of the period for which the employee is paid;
    • The employee’s name and the last four digits of his or her social security number or an employee identification number other than a social security number;
    • The name and address of the legal entity that is the employer; and
    • All applicable hourly rates in effect during the pay period, and the corresponding number of hours worked at each hourly rate by the employee.
  • In addition, all employee paychecks must list the address of a specific location within the state where the check can be cashed without a fee.

Vacation Pay (** also applies to exempt employees)

  • Forfeiture of vacation is prohibited in California
    • “Use it or lose it” policies are not permitted
    • All accrued but unused vacation must be paid upon termination

Final Paychecks (** also applies to exempt employees)

  • All employees must receive their final wages within the following timeframe:
    • Immediately upon involuntary termination
    • Within 72 hours if employee resigns without notice
    • On last day of work if employee resigns with at least 72 hours’ notice
  • All wages “due and owing” must be paid with the final wages, otherwise waiting time penalties are assessed.  This includes accrued, unused vacation and/or meal/rest period premiums
    • Commissions or other performance-based pay must be paid as soon as it can be calculated, regardless of when it otherwise would be paid.
  • No deduction may be taken from final paychecks unless legally mandated, authorized in writing by the employee, or for a loss attributable to the employee’s dishonest or willful act or gross negligence (but only if the employer is absolutely positive that it can be proven that the employee was not simply negligent). No balloon deductions for payoffs of employer loans to employees.

NEW CASE: Wisconsin employees cannot waive claims under the Wisconsin Fair Employment Act

In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable.  Specifically, the Commission found:

  1. Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
  2. An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.

The Case

In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.

The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:

Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.

After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination.  While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA.  Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.

The Ruling

The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division.  Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.

NEW CASE – Reach of California WARN Act is Expanded

Under the California WARN Act, employers of 50 or more employees are required to provide employees with 60 days advance notice of a “mass layoff” (any layoff involving 50 or more employees in a 30 day period). In a recent case (Boilermakers Local 1998 v. Nassco Holdings, Inc.), the California appellate court has held that the California WARN Act’s notice requirements extend to temporary layoffs and furloughs.

The Case

In this case, a shipbuilding company had temporarily laid off about 90 employees during a workload lull. The layoff was expected to last between 3 to 5 weeks. Since the layoff was temporary, the company did not provide affected employees with notice of the impending layoff in advance, but instead notified employees on the day the layoff began. The employees (via their Union) sued the employer for violation of the California WARN Act.

The Ruling

The Court agreed that the employer had violated the California WARN Act by failing to provide the requisite advanced notice of the layoff. This ruling was based on a key difference between the language in the federal WARN Act and the California WARN Act. In the federal act, employers are only required to provide advanced notice of a mass layoff lasting more than 6 months. The California WARN Act, on the other hand, does not include a minimum duration for the layoff. As a result, California employers are required to provide employees with advanced notice of any mass layoff – regardless of the anticipated duration of the layoff.

Take Home For Employers

This ruling is very significant for California employers who temporarily layoff their employees for a set period of time (e.g. seasonal shutdowns like closing between Christmas and New Year’s, or during the summer months) because, under this case, it is clear that employers are required to provide each employee with required WARN notice relating to the shutdown. It is also important to remember that this notice must be provided to each employee individually (i.e. a posting in the workplace or mass email will not suffice) and that it must also be provided to various state and local government agencies, as well as to the employees’ union (if applicable). It is recommended that employers who engage in this practice review their California WARN Act requirements.

NEW CASE – Cautions Washington Employers About Their Progressive Discipline Policies

Attention Washington employers, in a recent case (Mikkelsen v. Public Utility District No. 1 of Kittitas County), the Washington State Supreme Court found that an employer’s progressive discipline policy altered the “at-will” employment relationship and created a situation where the employee could only be discharged “for cause.”

The Case

In this case, the plaintiff (a woman) was the Finance Manager for Public Utility District No. 1 of Kittitas County. After the relationship between the plaintiff and the General Manager (a man) deteriorated, the plaintiff began to complain that she was being treated differently than the other (male) managers in the office. Ultimately, the plaintiff was asked by the president of the Board of Directors to create an anonymous survey about the General Manager. When the General Manager found about out the survey, the plaintiff was terminated.

She later filed a lawsuit for gender discrimination and wrongful termination in violation of the employer’s progressive discipline policy. This case was dismissed at summary judgment by both the trial court and the appellate court. The plaintiff then appealed her case to the Washington State Supreme Court, who overturned the dismissal of both claims.

The Ruling

With respect to the plaintiff’s gender discrimination claim, the Court found that plaintiffs need not prove they were replaced by someone outside of the protected group in order to establish gender discrimination. Instead, plaintiffs only need prove that they were in a protected class, terminated from a job they were qualified for, and the employer continued to seek candidates. This is a reversal of the previous standard where a plaintiff was required to prove “that they were replaced by someone outside of their protected group – the replacement element.” This is significant to employers because they can no longer use just the replacement element to avoid potential liability for discrimination

More significant (and impactful to employers) was the Court’s ruling with respect to the plaintiff’s wrongful termination claim. The plaintiff claimed that the employer’s progressive discipline policy voided the at-will nature of employment and the Court agreed – despite the fact that the policy contained a disclaimer which stated “the rules set out here are intended only as guidelines, and do not give any employee a right to continued employment or any particular level of corrective action”

The Court found that this disclaimer was ambiguous (with respect to preserving the at will employment relationship) and did not “sufficiently emphasize to employees that employment would remain at will. Instead, the Court found that the progressive discipline policy, on whole, indicated that termination could only occur “with due consideration for employee rights and expectations”, which the Court held eliminated the at will employment relationship and required discharge for good cause only.

Take Home For Employers

While we recommend against employers implementing a progressive discipline policy (mainly because of the risks of destroying the at will nature of employment), there are employers who elect to include this type of policy in their handbooks. This case reminds employers that a progressive discipline policy needs to be drafted extremely carefully and clearly state that the at will nature of employment is preserved.

Employers who have this type of policy in their handbooks should review the policy to verify that the language in the policy makes it very clear to the employee that he/she is still “at-will” and there is no promise of specific treatment in disciplinary or other matters. In addition, language that indicates/promises that employees will be treated fairly, or even non-arbitrarily, in the disciplinary process and therefore terminated only “for cause” should be eliminated.

NEW CASE: Federal Court Finds Pregnancy Discrimination Act Protects Breastfeeding

In a recent decision (Hicks v. City of Tuscaloosa), the U.S. Court of Appeals for the Eleventh Circuit recently found that the Pregnancy Discrimination Act (PDA) bars discrimination not only on the basis of pregnancy, but also on the basis of pregnancy-related physiological conditions such as breastfeeding.

The Case

In this case, the plaintiff was a female police officer who had returned from maternity leave.  Upon her return, the officer requested an alternative duty because her doctor informed her that wearing the required bulletproof vest could cause infection and prevent her from breastfeeding.  The officer had requested to be assigned to a position where wearing a bulletproof vest was not required and the employer refused.  As a result, the officer resigned and filed a lawsuit.

The Holding

The court held that the employer’s refusal to accommodate this employee constituted discrimination under the PDA.  In making this decision, the Court likened the officer’s situation to that of the employee in Young v. United Parcel Service, Inc. (where the U.S. Supreme Court held the PDA bars employers from refusing to accommodate pregnant employees when they provide accommodations for similarly situated employees who are not pregnant.)  Here, the officer was able to show that her employer had provided alternative duties to employees with temporary injuries.  As a result, the Court held the employer’s failure to provide the officer with an alternative duty constituted pregnancy discrimination.

Take Home for Employers

The key for employers to remember here is that the Pregnancy Discrimination Act is more expansive than one might initially assume.  Specifically, even if an employee’s pregnancy (or pregnancy-related condition) does not amount to a disability under the Americans with Disabilities Act, the employer still might be required to provide the employee with an accommodation under the PDA.

NOTE:  There are also many state laws that provide protections for pregnant employees.  Before refusing accommodation to a pregnant employee and/or taking any adverse action against that employee, be sure to review the laws in your state.

NEW LAW: New California Law Favors Employees In Wage Retaliation And Whistleblower Claims

On October 3, 2017, California Governor Jerry Brown signed Senate Bill 306 into law.  This new law, which goes into effect on January 1, 2018, amends California Labor Code section 98.7 and adds Sections 98.74, 1102.61, and 1102.62 to the California Labor Code.  These changes add significant protections to employees who file wage-related retaliation and whistleblower claims and make it more difficult for an employer to defend itself against allegations that it retaliated against an employee for making wage claims.

What exactly does the new law do?

Injunctive relief

Most importantly, the new law makes it easier for employees and the California Labor Commissioner to obtain injunctive relief (a court-ordered remedy that requires an employer to specifically do something – like reinstatement of a discharged employee) in wage-related retaliation cases and potentially requires employers to reinstate discharged employees before an employer can fully defend itself against the allegations.

Under existing law, the Labor Commissioner has the authority to seek any appropriate relief (including injunctive relief) in retaliation cases, but only after it has investigated a claim and determined that unlawful retaliation has occurred.  This changes under the new law.’

Under the new law, the Labor Commissioner has the ability to petition the court for such relief during the course of an investigation”.  In other words, the Labor Commissioner will be able to go to court to obtain injunctive relief before an investigation has been completed and any finding of violation has been made.   In addition, the new law also allows employees to petition the superior court for injunctive relief in whistleblower claims.

But that isn’t all.  The new law also greatly reduces the burden of proof for obtaining injunctive relief in these types of cases.  Under the new law, injunctive relief can be obtain against an employer based on a mere showing that “reasonable cause exists to believe a violation has occurred.”  In addition, courts are also instructed to consider “the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.”   This is dramatically different from the typical standard for injunctive relief, which requires a showing that (1) the employee will suffer irreparable harm, (2) the employee will likely succeed on the merits, and (3) the employee’s interests outweigh the employer’s.

Investigation of Retaliation Claims

The new law also authorizes the Labor Commissioner to begin an investigation into alleged wage-related retaliation “with or without receiving a complaint” from an employee.  In other words, if the Labor Commissioner suspects that retaliation has occurred during adjudication of a wage claim, during a field inspection, or in instances of suspected immigration-related threats, it may proceed with an investigation without first receiving an employee complaint.

New Retaliation Enforcement Process

The new law also dramatically changes the Labor Commissioner’s citation process for the enforcement of claims of retaliation and discrimination.

Under existing law, the Labor Commissioner can only enforce its retaliation determinations via civil action (i.e. by going to court).  However, under the new law, the Labor Commissioner can simply issue a citation directing the employer to cease the violation and take actions necessary to remedy the violation.  It is then up to the employer to challenge the citation through the legal process (administrative proceeding and court appeal).

The appeal process has also changed.  Under existing law, the employer can appeal the Labor Commissioner’s determination to civil court for a trial de novo (a new trial).  However, under the new law, the employer is required to file a writ of mandate with the superior court and post a bond equal to the total amount of back pay allegedly owed.

Higher Penalties

Finally, the new law imposes increased penalties on employers if the Labor Commissioner wins on its enforcement action.  First, the Labor Commissioner can recover reasonable attorney’s fees.  In addition, if an employer willfully refuses to comply with an order of the court to hire, promote, or restore an employee, or refuses to comply with an order to post a specified notice, shall be subject to a civil penalty of $100 per day of noncompliance, up to $20,000.  This penalty is paid to the affected employees.

Take home for employers

This new law should incentivize California employers to make careful and well-reasoned disciplinary and discharge decisions as well as to thoroughly-document those decisions for every employee.  The penalty for failure can be extremely costly  — as evidenced by this new law.