Category Archives: Layoff/Termination

NEW LAW – West Virginia Extends Protections to Members of the State Wing of the Civil Air Patrol

Earlier this year, West Virginia Governor Jim Justice, Jr. signed Senate Bill 280 into law. This new law, which went into effect on July 1, 2017 provides new protections to West Virginia employees who are active members of the state wing of the Civil Air Patrol.

This new law makes it unlawful for employers to discriminate against or discharge from employment an employee who has been employed for a minimum of ninety days and is a member of the Civil Air Patrol because of membership in the Civil Air Patrol.

In addition, this new law requires employers to provide these employees with Civil Air Patrol Leave as follows:

  • A maximum of ten days per calendar year of unpaid Civil Air Patrol leave to an employee training for an emergency mission of the West Virginia wing of the Civil Air Patrol.
  • A maximum of thirty days per calendar year of unpaid Civil Air Patrol leave to an employee responding to an emergency mission of the West Virginia wing of the Civil Air Patrol.

To receive this leave, employees must provide the employer with advanced notice of their need for leave as follows:

  • Training Leave – Employees must provide at least fourteen days’ notice of the intended dates of the beginning and end of leave together with an estimate of the amount of time needed to complete training.
  • Emergency Mission Leave — Employees must provide as much notice as possible of the intended dates of the beginning and end of leave together with an estimate of the amount of time needed to complete an emergency mission.

When the employee returns to work, the employee must be reinstated to the position held when the leave began or to a position with equivalent seniority status, benefits, pay and conditions of employment.

Former Employees Have No Right to Inspect Personnel Files in Pennsylvania

In a recent decision (Thomas Jefferson University Hospital, Inc. v. Pennsylvania Department of Labor and Industry), the Pennsylvania Supreme Court has held that former employees have no right to access their personnel files. This decision reverses a 2016 decision by the Commonwealth Court of Pennsylvania where the lower court had found that employers are required to allow recently separated employees access to their personnel files.

The Pennsylvania Supreme Court’s decision focused on the definition of the term “employee” in the Pennsylvania Inspection of Employment Records Law (Personnel Files Act). The law defines employees as “[a]ny person currently employed, laid off with reemployment rights or on leave of absence.  The term ‘employee’ shall not include applicants for employment or any other person.”

The Court found that “former employees, who were not laid off with re-employment rights and who are not on a leave of absence, have no right to access their personnel files pursuant to the Act, regardless of how quickly following termination they request to do so.”

Wisconsin Employers Beware – Disciplining an Employee for Misconduct Caused by Disability Can be Discrimination

In a recent case (Wisconsin Bell, Inc. v. Labor and Industry Review Commission), the Wisconsin Court of Appeals has found that an employer disciplining an employee for misconduct caused by his disability was discrimination in violation of the Wisconsin Fair Employment Act (WFEA). Rather than terminating an employee, the Court found that there are circumstances under the WFEA where an employer may be required to excuse the employee’s misconduct that could be caused by a known disability as a reasonable accommodation.

The Case:

This case involved employee at a call center who had a known disability (bipolar disorder). His primary job duties included answering phone calls and responded to incoming emails. After discovering that the employee had disconnected eight consecutive calls over a period of nine minutes without any explanation, the employee was suspended. During the disciplinary meeting to discuss the suspension, the employee provided the employer with letters from his psychiatrist and psychotherapist wherein it was disclosed that this employee suffered from a bipolar disorder.

Following his suspension, the employee started using a “health code,” which allows employees to go offline temporarily and stops incoming customer calls from going to that employee. During the activation of the health code, he sent the following message to his manager:

“TTYL.  Thank you.  Talk to you later and thanks for being there as one of my lesbian friends.”

When the operations manager responded, the employee replied, “[s]orry wrong window.”

Based on this email communication to his manager, the employer had reasonable suspicion that the employee had been chatting with coworkers while the health code was activated. This suspicion was later confirmed by the employer following a review of the employee’s online chats, which proved the employee had been misusing the “health code”.

The employer held another disciplinary meeting to discuss the online chat incident. At this meeting, the employee submitted more documentation from his psychiatrist and explained his actions were again related to his disability. Despite this explanation, the employee was terminated for ignoring customer calls.

As a result of the termination, the plaintiff filed a discrimination claim that suggested he was discharged because of his disability.

The Ruling

The Wisconsin Court of Appeals held that under the “inference method,” if an employee is discharged because of conduct that was a direct result of his or her disability, the discharge is, “in legal effect, because of that disability.” The court did, however, add two important qualifications to the inference method and these are as follows:

  1. The court noted that for the inference method to apply, the employee must provide evidence that the employer knew of the link between the employee’s disability and the conduct that resulted in the adverse employment action
  2. The court found that expert testimony may be required to establish the link when it is beyond the expertise of laypersons.

Takeaways for Employers

Although federal precedent under the ADA, generally upholds that employers can terminate employees for misconduct even if the misconduct is caused by a disability this case suggests otherwise. Employers in Wisconsin should give strong consideration to the Wisconsin Court of Appeals’ interpretation of the Wisconsin Fair Employment Act, which may require employers to reasonably accommodate or even excuse misconduct that can be caused by disability.

 

Another Costly Lesson about Sex Discrimination

Nestlé Waters North America, the world’s largest bottled water company, has learned a $300,000 lesson about sex discrimination. The company recently settled a lawsuit with the EEOC relating to sex discrimination.

In this case, the company had created a new position (business manager) in its Florida office, One of the applicants (a female employee who had been with the company for 20 years) was overlooked for the position and instead the company hired a male employee who did not meet the minimum requirements for the role as described in the job description. The company later terminated the female employee as the result of a purported “consolidation;” however, of the 14 Florida zone managers and zone manager supervisor positions, only the female employee lost her job as a result of this consolidation.

Following the filing of the lawsuit, the company settled the claim for $300,000. The company is also required to develop and implement an anti-sex discrimination policy and to provide annual training regarding all forms of sex discrimination, including sex stereotyping, to its Florida management team.

Take home for employers

This case serves as an important reminder for employers regarding discrimination in the workplace.

When making hiring decisions, employers must exercise caution and hire the best candidate for the job regardless of gender (or any other protected class). If an employee is hired who does not meet the minimum qualifications for a job (based on a job description developed by the employer), this could serve as an indicator of a unlawful basis for the hiring decision – especially if a better-qualified candidate is rejected.

When making termination decisions, these must also be made with caution and not based on an employee’s protected class.

Frequently Absent Employees Require Careful Management under the ADA

In a recent case, Williams v AT&T Mobility Services LLC, we are given some much-needed advice on the scope of the employer’s duty to accommodate. In this case AT&T showed that they communicated regularly with the employee, applied its attendance policy flexibly, and granted generous leave before taking the final termination step.

Kirsten Williams worked as a Customer Service Representative in AT&Ts call center from 2006 to 2014. Like most call centers, regular attendance is required. When a CSR is absent calls must be rerouted, which can adversely impact wait times, quality of service and employee morale. AT&T’s attendance policy seeks to control absenteeism by assigning “attendance points” to unscheduled absences. Eight or more points are grounds for termination. FMLA leave, AT&T’s short term disability and ADA accommodation are excluded from points.

Williams had attendance problems for most of her employment. From 2007 to 2014, she received written warnings for excessive accumulation of attendance points.

She was absent from work most of 2013 due to her depression and anxiety attacks and she used FMLA and STD to cover her time off. She performed no work from January to July 2013, worked a few days in August before returning to STD in September and remained on leave October and large parts of November and December 2013.

Her absenteeism continued in 2014. Her supervisor discussed her attendance in both January and February since she had nearly accumulated enough points for termination. She worked only sporadically in March, and after April 9, she ceased to work entirely. She was not eligible for FMLA due to not working 1,250 hours the preceding year. She obtained STD leave for April but was denied after April 27, 2014, because of insufficient medical documentation.

AT&T repeatedly asked Williams about her intent to resume working. Each time she indicated that she was not ready and requested additional leave. AT&T initially granted the leave extensions, but in June of 2014, after Williams failed to provide sufficient information from her healthcare providers regarding her need for leave, the leave extensions were denied and Williams was terminated.

After her termination, Williams filed a lawsuit claiming that AT&T failed to accommodate her disability. She argued that she would have been able to work if only she had been allowed a flexible start time and ten-minute breaks every two hours, as her doctor had recommended.

The court determined that her proposed accommodation would not have solved her attendance problems. The court also determined that more leave was not required. Additional leave was not a reasonable accommodation because her doctor could not determine when she could return and she failed to improve during her previous leaves. She was not qualified for the job.

Take away for employers

  • Have clear attendance expectations and attendance policies.
  • Be consistent in taking disciplinary action and document your process
  • Communicate often and be flexible and patient
  • Grant your leave according to policy and past practice
  • Document your request to return to work in writing prior to termination
  • It is a good practice to consult with a labor law attorney prior to denying leave as an accommodation

Handling employee political advocacy

Over the past several weeks, the country as a whole has faced an onslaught of politically-motivated marches and protests both in support of and against the Trump administration.

Most recently, there have been rumblings about groups trying to organize a “general strike” and “occupation of public space in protest of the Trump administration’s refusal to Honor the Constitution of the United States of America” that could take place as early as February 17th. The “demands” of the strike may include the following:

  • No Ban, No Wall. The Muslim ban is immoral, the wall is expensive and ineffectual. We will build bridges, not walls.
  • Healthcare For All. Healthcare is a human right. Do not repeal the ACA. Improve it or enact Medicare for All.
  • No Pipelines. Rescind approval for DAPL and Keystone XL and adopt meaningful policies to protect our environment. It’s the only one we’ve got.
  • End the Global Gag Rule. We cannot put the medical care of millions of women around the globe at risk.
  • Disclose and Divest. Show us your taxes. Sell your company. Ethics rules exist for a reason and presidents should focus on the country, not their company.

According to the latest speculation about these efforts, these groups may potentially be attempting to organize a mass walk-off involving workers across the United States. This rumored general strike combined with the various protests that have occurred to date has caused many employers to ask “What can I do if my employees participate?”

Can employers discipline and/or fire employees for leaving (or missing) work to participate in these protests?

The answer to this question depends on whether the employee’s participation in the protest (or the general strike) would be considered “protected concerted activity.”

Under the National Labor Relations Act, employers are prohibited from “retaliating” against an employee for engaging in protected concerted activity (i.e. employees taking action to try to improve their pay and working conditions). While it may seem that participating in a political protest is not engaging in protected concerted activity, a 1978 US Supreme Court case (Eastex, Inc. v. NLRB) says differently.

In this case, the Court held that employees are engaging in protected concerted activity when they seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.” While the Court noted that this principle does not apply to all political activity, the National Labor Relations Board has found that certain political activity can amount to protected concerted activity if the subject of the protest is sufficiently employment-related. For example, participation in a political protest relating to “the Fight for $15” (increase minimum wage at a nationwide level) may be considered protected concerted activity; while participation in a political protest against the President’s environmental policies may not be. As stated in a 2008 General Counsel Memo, “the Board looks to whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.”

However, the Memo also notes that while certain political advocacy may be protected, “the means employed to carry out that advocacy” may not be protected. Specifically, the Memo notes that “economic pressure in support of a political dispute may not be protected when it is exerted on an employer with no control over the outcome of that dispute.” In addition, “conduct with a protected object may nonetheless be unprotected because of the means employed…” In noting that the “the right to strike ‘is not absolute’ or ‘without limitation,’ the Memo concludes that “leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally-applied work rules.”

Application to the present situation

While employers cannot discipline employees for engaging in political advocacy while off duty, employers may be able to discipline employees who leave (or miss) work to attend a protest. Provided that the employer consistently and equally applies its workplace rules, employers may be able to (1) refuse to grant employees time off to attend the protest; and (2) discipline (or even terminate) employees for missing work to attend the protest after time off was denied. (NOTE: in some jurisdictions where paid sick leave is mandated by state or local law, employers may be prohibited from disciplining an employee for calling out “sick” to attend the protest – regardless of whether the employee is actually ill).

The important thing to remember is that employers should have a plan in place to help them prepare a response to this type of conduct. We recommend that you contact an HR Professional or qualified employment counsel for assistance in developing your response.

Employers Take caution when applying your voluntary resignation policy

A recent California case (Leticia Bareno v. San Diego Community College District ) serves as an important reminder for all employers when applying a “voluntary resignation” policy to an employee who has failed to return from a medical leave of absence.

In this case, the plaintiff had taken a medical leave of absence. On the day that the leave was set to expire, the plaintiff sent her employer an email informing them that her leave had been extended an additional week. A copy of the doctor’s note extending the leave was attached to the email. The employer claimed that it did not receive this email, but instead only received a second email the plaintiff had sent. This second email simply said that she remained on medical leave, but did not reference the doctor’s note.

The plaintiff remained absent from work for that week. At the end of the week, the employer sent the plaintiff a letter informing her that under company policy, her five consecutive unauthorized absences constituted a voluntary resignation. Upon receipt of the letter, the plaintiff attempted to contact the employer about her absences that week and provided the employer with medical documentation supporting the medical necessity of her absences, but the employer refused to reconsider the “voluntary resignation.”

In finding that the plaintiff had been wrongfully terminated from her employment, the Court held that even absent the second doctor’s note, the plaintiff’s communications to the employer about her absence were enough to put the employer on notice that she needed additional leave and was not voluntarily resigning (or abandoning) her employment.

Take home for employers

This case provides a good lesson for employers who are seeking to end an employee’s employment due to “voluntary resignation” caused by “job abandonment” following an employee’s failure to return from a leave of absence. Rather than label the continued an absence a voluntary resignation, employers need to tread carefully and attempt to engage in the interactive process to determine whether the employee needs to extend his/her medical leave of absence.

US DOJ Weighs in on Unfair Immigration-Related Employment Practices

The U.S. Department of Justice (DOJ) recently issued a new rule that revises its regulations on Section 274B of the Immigration and Nationality Act (INA). These regulations prohibit unfair immigration-related employment practices. The new rule clarifies the standards for determining whether a prohibited practice has occurred.

Under Section 274B, employers are prohibited from:

  • Discriminating against any individual who is authorized to work in the US with respect to hiring and firing because of the individual’s
    • national origin, or
    • citizenship status
    • Note: This applies to employers with between 4 and 14 employees. (An employer with at least 15 employees is covered by Title VII.)
  • Engaging in “unfair documentary practices” relating to verifying an employee’s work eligibility –e.g.
    • Requesting that an individual present more or different documents than are required to establish work eligibility or
    • Refusing to accept documents that reasonably appear to be genuine if done “for the purpose or with the intent of discriminating against” the individual on the basis of national origin or citizenship status.
  • Retaliating against any person because he filed a charge alleging a violation, participates in the investigation of such a charge, or otherwise contests action that may constitute an unfair documentary practice or discrimination based on national origin or citizenship status.

Under the new rule, the DOJ has done the following to clarify ambiguities in the current regulation:

  • Define “discriminate”: The new rule makes it clear that the employer’s intent to discriminate must be based on national origin or citizenship status in order to violate the INA.

 

 

Take home for employers

Employers must take steps to avoid discrimination in the hiring and termination process. Employees who have the power to hire and fire should be trained on avoiding any conduct during the hiring/termination that might be considered discriminatory under the amended regulations or under any other federal or state anti-discrimination law. In addition, employees who handle the Form I-9 completion should be trained to process these forms in in a manner that is consistent for all employees, regardless of citizenship or immigration status.

California limits employers’ “forum selection” and “choice of law” provisions in employment agreements

It is not uncommon for an out-of-state employer who is doing business in California to require its California employees to agree to litigate (or arbitrate) an employment-related claim outside of California and/or require that another state’s laws shall be applied to an employment-related dispute. However, with the signing of SB 1241 into law, such provisions are now “voidable” by California employees.

Under this new law, out of state and multi-state employers can no longer require, as a condition of employment, that an employee agree to:

  • litigate or arbitrate a dispute outside of California. (e.g. a NY-based company cannot require an employee to litigate or arbitrate his or her dispute in NY court).
  • that another state’s law to apply to a dispute.   (e.g. a multi-state employer that has an arbitration agreement cannot provide for another state’s law to apply in the case of a dispute).

This law applies only to those California employees who “primarily” reside AND work in California. While the term “primarily” is not defined in this new law, under California’s wage and hour law, primarily means more than 50%. Therefore, it is possible that “primarily” will have the same meaning for this new law.

The new law goes into effect on January 1, 2017. It only applies to new agreements made after that date (January 1, 2017) and any agreement “modified” or “extended” after that date. As a result, provided that an existing agreement (containing a choice of law provision and/or a forum selection clause) is not modified or extended after January 1, 2017, the new law will not impact that agreement.

In addition, the new law does not apply if the employee was represented by an attorney when the employee agreed to the choice of law / venue provisions in the employment agreement.

It is important to note that the new law makes choice of law / venue provisions voidable by the employee and not unlawful per se. This means that the employee can object to the provisions and request that the Court strike the provisions. If that happens, then the matter must be litigated in California under California law. However, if an employee does not object to the provision, then the choice of law / venue provisions would stand.

Terminating an employee because she has a disabled daughter cost employer $165,000

Associational discrimination is a little known type of disability discrimination that is covered under the Americans with Disabilities Act (ADA). In a recent case the EEOC agreed to settle with New Mexico Orthopedics Association for $165,000.

The suit alleged that NMOA violated the ADA by firing a temporary staffing employee, and failing to hire her for a full-time position because of her relationship with her then three year old disabled daughter. The EEOC claimed NMOA passed her over because there was a strong possibility that she would have to take time off to care for her daughter.

Employers cannot take an adverse employment action against an individual because he or she may have to care for or is closely linked to a disabled individual.

“The ADA specifically prohibits discrimination against mothers, fathers, caregivers, family members or others who are associated with persons with disabilities,” said EEOC Regional Attorney Mary Jo O’Neill. “Employers, especially those employers in medical fields, should be careful to provide employment opportunities based solely on the qualifications of the employee or applicant and not impermissible factors such as their association with an individual with a disability.”

Questions and Answers about the about the associational provision of the ADA can be found here.