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June 13, 2013

The most cockamamie excuse evah for firing a pregnant employee

bernie.jpgWhen it comes to reasons for firing employees, I've heard some good ones in my day -- and by good, I mean legitimate.

Conversely, the excuse I just read in the Seventh Circuit's opinion in Hitchcock v. Angel Corps., Inc., a case involving a pregnancy discrimination claim, may be the worst. The worst one ever.

Angel Corps and its management staff feel that as a result of [the plaintiff's] actions she compromised the health and safety of this client. According to policy and procedure this action will result in an immediate termination.

Angel Corps is a non-medical home care agency that performs personal care services for its clients. And the plaintiff was a client services supervisor who, indeed, had recently visited a client.  

So what makes this excuse so lame? So absurd? Such an all-timer?

Well, you see. Angel Corps. asked the plaintiff to visit a new 100-year old client for intake and assessment. When the plaintiff showed up at the centenarian's house, she assessed that the client was dead. That's right, dead! The client was already dead. For two days.

Naturally, the plaintiff, who had informed Angel Corps that she was pregnant, suspected that something was amiss her; possibly the firing for failing to properly care for a dead person reflected discriminatory animus against the plaintiff. (Well, that and the increased scrutiny and work heaped on her after her baby announcement).

But hold on here, folks. Maybe, just maybe, I'm overselling this. So, let's consider the supervisor affidavit that Angel Corps. filed with the lower court in support of its motion for summary judgment on the pregnancy discrimination claims:

Had [the client] been living at the time Hitchcock did her assessment (such as when Hitchcock was originally scheduled to assess [the client on March 31]) Hitchcock would have compromised the health and safety of [the client] by not conducting a proper assessment and by not attending to or taking steps for Angel Corps [to] attend to obvious problems of [the client], such as the dried liquid on her mouth.

For realz! That's what they filed. And you know what? The lower court granted summary judgment to Angel Corps. It dismissed the pregnancy discrimination claims!

[Cue music]

Fortunately, the Seventh Circuit disagreed, finding that Angel Corps' "legitimate business reason" for terminating Ms. Hitchcock may be pretextual; i.e., phony:

A reasonable juror could also find the explanation ... to be so ludicrous that Angel Corps is not to be believed...Angel Corps's brief attempts to make sense out of [this], but it does so by piling on additional ever-evolving justifications that may cause a reasonable juror to wonder whether Angel Corps can ever get its story straight.

Two takeaways for my readers:

  1. If you have a reason for firing someone, make sure it's a good one that doesn't involve failing to administer proper care to a dead person.
  2. The one exception.
  3. Otherwise, stick with that reason. When you shift reasons, you look shafty. And neither judges nor jurors like shafty.
June 12, 2013


We are less than a week from the start of the SHRM Annual Conference & Exposition, which kicks off in Chicago on Sunday, June 16.

shrm13.jpgI will roll into town on Monday. My plan is to hit the House of Blues that night for The Official #SHRM13 TweetUp & Afterparty. Next day, I'll be chugging hair of the dog shuttling between the Blogger's Lounge and The HIVE, where I'll ultimately set up shop and take your social media questions in the "Ask the Expert Session" at 10:30 AM.

Are you going? First time? What's your plan? (Let me know in the comments below).

WeKnowNext has a nice post on Maximizing your SHRM Annual Experience, as well as Eight Things Not To Do at #SHRM13. Plus, Blogging4Jobs.com hooks you up with the Exclusive #SHRM13 Unofficial Party Guide.

And if I may offer one piece of advice:

I'd love to meet some of my readers. If you would like to meet up -- unless your hygiene is poor; keep your distance -- email me, tweet me, connect on LinkedIn. Or just tap me my security on the shoulder at the #SHRM13 TweetUp. They'll summon me from the dumpster in the alley my table behind the velvet rope.

June 11, 2013

Does firing a law firm associate for discussing wages violate federal labor law?

There's not a whole lot that we have in common. I'm more erudite (you know, the blog thing), better looking, and more arrogant confident.

Given our differences, what I'm about to say may come as a surprise: when I was a associate attorney, I discussed salaries with other associates.

(I'll pause as the shock dissipates).

whisperIn my law-firm experience, discussing salaries ranks right up there with death and taxes. Over at EFCAblog.com -- you may want to update that URL, dudes -- Daniel Schudroff writes here about a small-firm associate who claimed that she was fired in violation of the National Labor Relations Act for discussing wages with co-worker.

The Act prohibits covered employers -- union and non-union -- from taking any action that would chill employee discussion of wages and benefits. However, supervisors are not protected. And in The Martin Law Group, 10-CA-078395 (Div. Judges May 6, 2013), an administrative law judge determined that the associate was actually a statutory supervisor. Therefore, she had no protection under the Act, and even if her employer had fired her for discussing wages, she had no recourse under the Act.

Mr. Schudroff summarized the ALJ's rationale:

The administrative law judge found that the associate was a supervisor for a number of reasons. First, the judge noted the firm's managing partner, without further investigation, ratified the associate's recommendation to terminate an employee. The administrative law judge also explained the associate responsibly directed a case manager to assist the associate in handling the associate's cases. The ALJ noted, however, that a small law firm -- where all attorneys were lead counsel on their own cases -- would differ from, for example, "a legal services agency employing a large number of staff attorneys who work under multiple layers of supervision."

I'm gonna go out on a limb here and say that this case will not spell the end of salary discussions at law firms -- small or large.

June 10, 2013

The ethical tightrope of social media as a litigation tool

Savvy lawyers today use social media to mine and collect important data about litigants. But cross that line from savvy to shady, and you may find yourself in deep do-do.

(Kinda like the blow-out I encountered when I reached inside the back of my youngest's wetsuit at the pool this weekend to check his diaper. But different. And TMI. Anyway...)

James McCarty of the The Plain Dealer reported here last week that an Ohio prosecutor was fired for pretending to be a woman in a Facebook chat with an accused killer's alibi witnesses in an attempt to persuade them to change their testimony.

The former prosecutor told The Plain Dealer, "I think the public is better off for what I did." 

His employer vehemently disagreed.

"This office does not condone and will not tolerate such unethical behavior. He disgraced this office and everyone who works here."

Not being a criminal lawyer, I do not know how the rules of ethics that govern my practice cross over. But rest assured that chicanery like this will likely earn a civil litigator an ethics charge.

Remember last year, when I posted here about two NJ defense lawyers who were charged with violating ethics rules governing communications with represented parties. The charges arose after a paralegal for the two lawyers allegedly friended an attorney-represented plaintiff in a personal injury case to get additional information to undermine the plaintiff's claims. Each lawyer disclaimed any knowledge of Facebook's privacy settings.

My suggestion to you, as it was back then, is to get familiar with social media as a litigation tool. The lesson is also the same: always consider the ethical implications of your actions, whether offline or online. 

And ignorance -- of social media or these rules of professional conduct -- is no excuse.

June 7, 2013

"What do you mean, 'you people'?"

Trouble in the workplace; funny in the jungle.

June 6, 2013

Not for Teacher: Court denies request to miss Tuesdays for Sabbath

cross.jpgBad Van Halen pun aside, let's play some Skynyrd. Even Waldo agrees.

So, there was this woman in Louisiana who took a teaching position at an elementary school. You know the kind; one that operates on weekdays. And, around her start date, she asked the administration for Tuesdays off to pray and observe her Sabbath. And the administration was all like, no.

So, a month later, the teacher filed a Charge of Discrimination with the EEOC, claiming religious discrimination for failure to accommodate.

Raise your hand if you think the teacher wins this lawsuit. 

Now, those of you with your hands up, ball that hand into a fist and punch yourself in the face. And, keep punching yourself, as I remind you that an employer does not need to accommodate an employee's religious beliefs if doing so would create undue hardship for the employer. In this context, undue hardship is anything "more than a de minimis cost" to the employer's business. For this reason, an Louisiana federal court in Slocum v. Devezin dismissed the teacher's religious discrimination claims because full-time teacher, last I checked, is a full-time position.

For more on addressing religious accommodation requests, check out this post.

June 5, 2013

Tough HR issues: ADA and extending a leave of absence

Depression-loss of loved oneAlright smarties. One of ABC Company's employees suffers from post-partum depression. She's been out of work for over a month, and the company wants to replace her. But, first, it wants your advice. 

Read all the facts below:

Emily Employee is an HR Coordinator at ABC Company. ABC provides short-term disability benefits for regular full-time employee like Emily. Last year, Emily began a 12-week maternity leave under the FMLA, during which time she received STD benefits. She returned to work with no restrictions.

Earlier this year, in late January, Emily met with her supervisor and requested a 30-day leave for post-partum depression. Emily's doctor faxed a letter to ABC requesting that Emily remain off work until late February. ABC approved her leave. In late February, Emily provided a second doctor's note stating that the post-partum had not resolved and Emily would need to remain out of work until early April. Emily submitted a medical certification form in mid-March.

Emily's supervisor comes to you with concerns that Emily's continued absences are problematic and creating workflow issues within HR. During her leave of absence, other employees in HR have also picked up some of Emily's duties. However, the majority of Emily's work has been performed by a temporary employee, Temporary Tammy.

ABC is considering terminating Emily before she returns in April and replacing her full-time with Tammy in May. However, Tammy will not be able to start until August (she too is pregnant).

So, what do you tell ABC? Let me know in the comments below.

(Later today, I'll post a link to a recent federal court decision discussing this very issue)

UPDATE: Here is the case. An Indiana federal court denied the employer's motion for summary judgment on this issue, suggesting (but not concluding) that an extended leave would have been reasonable. Further, the facts here appear to undercut any argument that attendance was an essential job function. But, the court wouldn't go so far as to say the employer was wrong for terminating "Emily." That will be up to a jury to decide.

June 4, 2013

Firing a woman for lactating at work is against the law

Allow me to be serious for a moment...

Moment's passed, eh? Ok. Let me bring it back...

Last week, the Fifth Circuit Court of Appeals ruled (here) that discharging a female employee because she is lactating or expressing breast milk is sex discrimination and, therefore, violates Title VII of the Civil Rights Act of 1964 (Title VII).

In EEOC v. Houston Funding II, Ltd., Dominica Venters, who was recovering from a C-Section, alleged that she requested that her supervisor ask the boss if it would be possible for her to use a breast pump at work. The supervisor stated that when he posed this question to the boss, the boss "responded with a strong 'NO. Maybe she needs to stay home longer.'"

Ms. Venters alleged that she was later told that her spot had been filled. Houston Funding alleged that Ms. Venters had abandoned her job. So, Ms. Venters alleged sex discrimination, and the U.S. Equal Employment Opportunity Commission took up the case on her behalf.

'Expressed breast milk' photo (c) 2007, Hamish Darby - license: http://creativecommons.org/licenses/by/2.0/In defending, Houston Funding argued Title VII does not cover "breast pump discrimination" and moved for summary judgment. The district court granted the motion, finding that, even if Venters' allegations were true, "[f]iring someone because of lactation or breast-pumping is not sex discrimination," because neither is a related medical condition of pregnancy. The EEOC timely appealed.

On appeal, the Fifth Circuit began its analysis by noting that the Pregnancy Discrimination Act (PDA), which is part of Title VII, provides that "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]" Therefore, Title VII must "cover a far wider range of employment decisions entailing female physiology," of which lactation is one of them. Consequently, the court easily concluded that the lower court was wrong and Ms. Venters stated a possible claim for Title VII sex discrimination.

Takeaway: Not only must employers consider their obligations under the Fair Labor Standards Act to provide nursing moms time and space to express breast milk at work, but taking action against a mom who requests to pump at work may get you discrimination lawsuit. (Although, the PDA does not require employers to affirmatively provide accommodations).

So, educate supervisors and management about these areas to avoid possible legal issues and, more importantly, treat new moms with the respect and dignity they deserve.

[Yes, I realize the irony of that last statement juxtaposed against the soundtrack for this blog post.]

June 3, 2013

Supreme Court passes on ADA transfer accommodation case

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Here's the scenario: You have a disabled employee who seeks an accommodation. Mindful of the Americans with Disabilities Act, and being the compliant company that you are, you engage that employee in an interactive dialogue to discuss reasonable accommodations -- options to allow the employee to perform the essential functions of the position. 

Ah yes! You recall that there is another vacant position for which the employee is qualified -- albeit barely. That's a reasonable accommodation. But, oh no! You remember seeing the resume of the perfect candidate for that position.

Question: If there is no other reasonable accommodation available, do you have to offer that open position to the barely-qualified disabled employee? Or can you fill the position with the more qualified candidate?

I'll discuss after the jump...

* * *

Continue reading "Supreme Court passes on ADA transfer accommodation case" »

May 31, 2013

Employee alleges he got the "Office Space," claims age discrimination

If the movie "Office Space" has taught me anything, it's to wear 37 pieces of flair to work -- do more than the bare minimum -- and to use a cover sheet with my TPS reports.


And never mess with a man's stapler. That too. Especially when you're also moving the man's desk four times and sending him to the basement. Because that could be age discrimination.

No, seriously. I was reading this decision from the United States District Court for the Eastern District of Pennsylvania. It involves claim of age discrimination where, the over-40 plaintiff claimed that he was "functionally replaced" by an employee who was substantially younger than him.

Functionally replaced?!? Here's how the court described it:

Plaintiff contests Defendant's argument, citing to the following evidence that he was functionally replaced: White received a pay raise; White was attending meetings and giving advice in areas that were within the job responsibilities of Plaintiff; White was performing tasks that were usually performed by Plaintiff; Defendant was trying to move White into a "nicer and more well placed office" and move Plaintiff to a smaller office in the basement of the facility; and, the deposition testimony of Art Fastman, the Executive Director of the facility and Plaintiff's superior, which seemingly supports his argument that he was replaced by White. In light of these allegations, we find that Plaintiff has adequately presented evidence to infer at the summary judgment stage that he was functionally replaced by a substantially younger employee (White).

Dudes! They moved him to the friggin' basement! They gave him the Milton!

Ultimately, the plaintiff was able to show that the manner in which he was treated compared to White, plus the timing of the plaintiff's termination (he had previously complained to management about age discrimination) showed discriminatory animus. Consequently, he was able to defeat the defendant's motion for summary judgment and his age discrimination claims now proceed to trial.

It's Friday. So, rather than leave you with a takeaway from this case, let's go with a SFW version of the printer beatdown scene. Classic!

And make sure to leave a few minutes early today. Just sayin'.

May 30, 2013

New federal bill would expand FLSA to protect salaried new moms

Back in 2010, when the The Patient Protection and Affordable Care Act went into effect, the Fair Labor Standards Act (FLSA) was amended to require a "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk."

Generally, employers are not required to compensate an employee for the break time to express milk, and an employer with fewer than 50 employees does not have to comply with the rule if it would pose an undue hardship.

One more minor caveat -- of which I must admit, I was not aware -- the law only covers non-exempt employees. (Although, I imagine that most businesses afford the same dignity to exempt employees too).

But just in case, Senator Jeff Merkley (OR-D) has introduced the Supporting Working Moms Act of 2013, which will further amend the FLSA to provide exempt moms with the same PPACA/FLSA right to express breast milk at work provided to their non-exempt counterparts.

** Must fight urge to...aw hell **

The Supporting Working Moms Act is co-sponsored by Senators Tom Harkin (D-IA) and Elizabeth Warren (D-MA). 

Identical legislation was introduced in the House by Congresswoman Carolyn Maloney (D-NY). In 2011, Ms. Maloney introduced the Breastfeeding Promotion Act of 2011, which would have amended both the FLSA and also changed Title VII of the Civil Rights Act of 1964 to preclude employers from discriminating against those who lactate. Title VII already covers discrimination on the basis of gender and sex.

(And last time I checked, only women lactate)

May 29, 2013

Oregon has a new workplace social media law. Is a federal law next?


Last week, before the Memorial Day weekend, Oregon Governor John Kitzhaber signed into law this bill, which prohibits employers from requiring or requesting that employees or applicants for employment:

  1. Provide access to personal social media accounts,
  2. Add employers to social media contact lists, or
  3. Allow employers to view an employee's or applicant's personal social media account.

Meanwhile, a few days before Oregon became the tenth state to enact a social media workplace privacy law, Rep. Ed Perlmutter [D-CO7] introduced the Password Protection Act of 2013 in the U.S. House of Representatives. According to this press release, Rep. Perlmutter is concerned that "employers essentially can act as imposters and assume the identity of an employee and continually access, monitor and even manipulate an employee's personal social activities and opinions."

[Editor's note: Take a guess how many employers have contacted me to request my legal opinion on whether they "essentially can act as imposters and assume the identity of an employee and continually access, monitor and even manipulate an employee's personal social activities and opinions."]

The bill itself would actually address more than the concerns Rep. Perlmutter raised. It would amend the Computer Fraud and Abuse Act and make it unlawful for employers to require that employees authorize access to a computer that the employer does not own or operate. Further, the law provides no carve-out for employers to obtain password-protected social media content that reasonably relates to a workplace investigation into claims of alleged harassment.

Both the House and Senate previously introduced the Password Protection Act of 2012. (More on the Senate bill here). Each bill died. And I don't foresee the 2013 version gaining much more traction.

May 28, 2013

Employee posts "FIRE ME...Make my day..." on Facebook. And guess what?


And not even the Associate General Counsel at the National Labor Relations Board could save this employee.

dirtyharry.pngIn Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the Charging Party -- and nine other people (of whom seven were current employees) participated in a private group message on Facebook. During that sesh, the Charging Party started mouthing off about his employer, saying, "They [the Employer] are full of shit ... They seem to be staying away from me, you know I don't bite my [tongue] anymore, FUCK...FIRE ME....Make my day..."

Other than the Charging Party, no current employees took part in this portion of the conversation. Later that day, one of the silent employees showed the exchange to the employer.

And Harry Callahan promptly got his wish.

Now, if this whole situation seems oddly familiar to you, it should.

Back in January, I blogged about an employee who posted, "I wish I could get fired" on Facebook, and promptly got her wish. In that post, I discussed the concept of protected concerted activity, the right of employees in a union or non-union workplace to discuss work issues with one another, even if it's unflattering to the employer.

But, as I noted back then, while gabbing with others is protected, griping alone is not protected. This Board's Associate General Counsel applied the same maxim to the Charging Party:

In the instant case, the Charging Party's comments merely expressed an individual gripe rather than any shared concerns about working conditions. Specifically, her comments bemoaned the return of a former employee and stated that her current supervisor tried to tell her something and she told her to "back the freak off'; that the Employer was "full of shit"; and that the Employer should "FIRE ME .. Make my day." These comments merely reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual "griping," and boasting about how she was not afraid to say what she wished at work.

So, next time one of your employees speaks out alone about wanting to be fired, go ahead and accommodate that employee make his day.

(h/t Sara Hutchins Jodka @ Employer Law Report)

May 24, 2013

Washington is the 9th state with a social media workplace privacy law

Or as I like to refer to it, an excuse to play Pearl Jam, Nirvana, and Alice in Chains on the blog.

Here is a link to Washington's new law.

Up next for a new social media workplace privacy law should be New Jersey, where the Assembly recently gave its unanimous approval to the Governor's conditional veto of recent legislation.

May 23, 2013

EEOC talks employer wellness programs; provides an ADA Q&A

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Consistent with its strategic plan to provide up-to-date guidance on the requirements of antidiscrimination laws, last week, the United States Equal Employment Opportunity Commission issued this press release in which it announced that it had revised guidance on how the Americans with Disabilities Act applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. You can find links to that revised guidance here.

And earlier in the month, the EEOC held a public meeting on employer wellness programs and how they may be impacted by not only the ADA, but also the Genetic Information Non-Discrimination Act (GINA). You can view a copy of the press release here. Suffice it to say that, until the EEOC offers further guidance on these issues -- and even when it does -- consult with an employment lawyer before implementing or updating one of these programs.