Category Archives: Layoff/Termination

NEW EEOC Case Reminds Employers That Sex Discrimination Isn’t Just for Women – Men Can Be Victims Too

Generally, when one thinks about sex discrimination what comes to mind is a woman being discriminated against by her employer because of her gender.  While that is typically the case, employers should remember that sex discrimination isn’t reserved for women – men can be victims too.  A recently settled EEOC lawsuit (EEOC v. Park School of Baltimore Inc.) makes this point clear to employers with a $41,000 price tag.

In this case, a private school in Maryland had hired a man to coach its softball team.  The coach was given a one-year contract in 2014, which the school then renewed for two additional years (2015-2016).   At the end of the 2016 season, the coach was informed that, despite his good performance, the contract would not be renewed for 2017 because the school preferred “female leadership” for its softball team.

The coach filed a claim with the EEOC alleging that he had been discriminated because of his gender and the EEOC agreed, filing a lawsuit against the school for gender discrimination.

While the case was quickly settled, it serves as an important reminder to all employers that “Title VII protects both men and women from unequal treatment based on gender.”

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: Connecticut Court Finds Providing Indefinite Leave Is Not A Reasonable Accommodation

In a recent case, Thompson v. Department of Social Services, the Connecticut Appellate Court held that an employer is not required to grant an employee a leave of absence as a reasonable accommodation where the employee requests an indefinite leave and does not respond to the employer’s request to contact her regarding her leave.

The Case

The plaintiff was a long-term employee of the Connecticut Department of Social Services and suffered from a chronic health condition that caused her to take medical leaves of absence (including FMLA leave) throughout her employment.

Following the expiration of an FMLA leave in February of 2013, the plaintiff left a note for the HR department advising that she would be taking additional medical leave starting the next day and lasting “over thirty days depending on my lung condition as I need to get well and my lungs better.”  The plaintiff did not speak to the HR Director in person, but left her contact information along with the instruction to “call me if you have any questions.”

The plaintiff also left the completed paperwork requesting additional leave under short-term disability policies.  However, the information on the two forms was conflicting.  On one form, the plaintiff stated that she was unable to return to work until reevaluated by her physician and that the physician expected “significant improvement in her medical condition” in one to two months. On the other form, the physician claimed that the plaintiff’s need for leave would be “ongoing” and she would be able to return to work “when reevaluated”, although no date was provided for the reevaluation.

Upon receipt of the note and the two forms, the HR department informed the plaintiff via certified mail that she was ineligible for extended leave because she did not provide sufficient information to support her need for additional leave.  The letter further advised the plaintiff that her current time off was unauthorized.  The letter also gave the plaintiff 15 days to provide additional medical certification to support her need for additional leave.

The plaintiff did not respond to this letter and her employment was terminated after the expiration of the 15-day period.  The plaintiff subsequently filed a lawsuit for disability discrimination.

The Holding

The Court that in this case the employer acted properly and that it was not required to provide her with an extended leave of absence when she had, for all intents and purposes, requested an indefinite leave of absence.  Specifically, the court found that her request for leave was not a reasonable accommodation because the plaintiff failed to provide the employer with any time frame for her return and then failed to respond to the employer’s subsequent attempts to contact her regarding her request for leave; thereby depriving the employer of the opportunity to engage in the interactive process with the employee.

Take Home For Employers

This case is significant because it confirms that extending an indefinite leave of absence is not a reasonable accommodation under the ADA.  However, this holding should be taken with a large grain of salt.

Even though this case was ultimately favorable to employers, it does not mean that employers are not required to extend a leave of absence following the expiration of FMLA as a reasonable accommodation.  Instead, it reminds employers of their obligation to engage in the interactive process with an employee who is seeking an extension of FMLA leave to determine whether extending the leave is a reasonable accommodation.  It further confirms that employers have the right to request that an employee provide reasonable documentation relating to their request for accommodation and they have a duty to explore various accommodations with the employee – one of which may be an extension of a leave of absence.

Finally, here the Court found that the employer’s attempts to engage in the interactive process with the employee (by sending two letters) were enough to make a good faith attempt to communicate with the employee.  However, did the employer really go far enough?  This Court thought yes, but other Courts in other jurisdictions have found that merely sending a letter to an employee is an insufficient attempt and employers should attempt to exhaust other lines of communication as well – like calling the employee on the phone.

If faced with a similar situation (an uncommunicative employee), we recommend that employers try multiple ways (phone, email, text message, letter) to contact the employee before reaching the conclusion that the employee is refusing to cooperate.