Abandoning job because of harassment does not support retaliation claim, says the 6th Circuit

Last week, I discussed the 6th Circuit’s most recent pronouncement on same-sex harassment. I noted that while some would argue the Court’s dismissal of the harassment claim is evidence of the need for law against workplace bullying, in reality the Court’s dismissal of the retaliation claim was the more troubling aspect of the opinion. What did I mean?

Recall that in Wasek v. Arrow Energy Services [pdf], when Harold Wasek complained that his male co-worker, Paul Ottobre, was harassing him, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” In response to this supervisor’s advice, Wasek went AWOL from his Pennsylvania job site. When Wasek later pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek couldn’t handle it he “should find another line of work.” Ultimately, Arrow banned Wasek from working in Pennsylvania and reassigned him to a job site in Michigan. He ultimately quit to work for a different employer.

The Court concluded that Wasek going AWOL, and not his complaints about harassment, caused his job-site transfer:

Wasek’s claim fails, however, because he has not demonstrated a causal connection between his protected activity—the complaints—and Arrow Energy’s adverse employment action—the Pennsylvania ban….

Leaving the work site could be protected activity if leaving itself were a “complaint” about sexual harassment. But this would require a fact-intensive inquiry into whether or not leaving the work site was reasonable under the circumstances.

Lately, we've seen more than one example of employers who avoided liability despite encapsulating some pretty poor HR practices. This case provides another textbook case of how not to respond to an employee complaint. Yes, you can hope to avoid liability based on a legal argument that the employee was not engaging in protected activity because the underlying misconduct was not illegal. That hope, however, misses the point. Anyone who has responsibility for responding to harassment complaints should be troubled by a decision that justifies an excuse such as “that’s the way the oil field is,” and suggests that the complaining employee tough it out or find another job. Employers need to take all complaints seriously, not just those that the employer thinks will cause it legal problems down the road.

Did the 6th Circuit just approve a claim for benign discrimination?

In Litton v. Talawanda Sch. Dist. (6th Cir. 6/26/12) [pdf], a demoted and transferred custodian sued his employer for age and race discrimination. At trial, the jury returned the following special verdict:

The jury concluded that Litton did not prove that he had suffered an adverse action, yet proved that he was treated differently because of his race. Under the McDonnell Douglas burden-shifting framework, the lack of an adverse action should dispose of the case. If one cannot show a prima facie case (which includes the suffering of an adverse action), the ultimate issue of discrimination should never be reached.

The 6th Circuit, however, disagreed. It disregarded the jury’s finding on the existence of an adverse action as irrelevant to its subsequent finding on the ultimate issue of whether discrimination occurred:

The jury’s assessment of Litton’s prima facie case did not control its finding on the ultimate question of discrimination…. he district court was not only permitted to disregard the jury’s answer to the adverse employment action question, it was required to do so, and instead to evaluate the strength of the evidence as a whole.

As I read the opinion in Litton, I mapped out in my head a grand critique. Then I read Judge Batchelder’s dissent, and decided I couldn’t say it any better:

The core problem with the majority’s holding is that it treats the question of whether Litton suffered adverse discrimination as distinct from “the ultimate question of discrimination vel non.” The two are one…. Title VII does not ban mere discrimination, but only adverse discrimination…. It is, to me, beyond obvious that Title VII applies only where there has been discrimination against an individual. That requirement is not merely some vestigial prima facie element that fades into the background as the case progresses—it is at the heart of the claim itself….

In sum, “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” … The majority should not relieve Litton of his burden, and it certainly should not grant him victory in the face of a jury verdict finding that he never proved that he suffered adverse discrimination at all. The whole purpose of Title VII … is preventing harmful discrimination, not the lamentable-but-benign discrimination that the jury found Litton experienced.

Did the 6th Circuit unwittingly create a cause of action for benign discrimination? Or, is this case an anomaly that future courts will distinguish and disregard? Common sense mandates the latter. Right?

Will the Supreme Court (re)define employer liability for harassment by supervisors? Vance v. Ball St. Univ.

An employer’s liability for unlawful harassment depends, in part, on whether the alleged perpetrator of the harassment is a supervisor or a co-worker. Employers are strictly liable for unlawful harassment committed by a supervisor, but only liable for harassment committed by a non-supervisory co-worker if the company was negligent in discovering or remedying the harassment.

In Vance v. Ball St. Univ. (7th Cir. 6/3/11), the court concluded that for the purpose of imposing strict liability for harassment, “supervisor” means “direct supervisor.” That is, if the alleged harasser is a supervisor in title, but lacks the power to directly affect the terms and conditions of the plaintiff’s employment, strict liability cannot attach, and the court must analyze the employer’s liability under a negligence standard.

Yesterday, the U.S. Supreme Court agreed to hear the appeal of this case. The Court will decided the following two-part issue:

Whether the “supervisor” liability rule … (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

This case has the potential to be significant for employers. As the plaintiff argued in support of the Supreme Court hearing the case:

These issues are no small matter. During the twelve-month period ending September 30, 2010, 14,543 employment discrimination cases were filed in United States courts—the third-largest category of civil cases…. And in 2010 alone, the EEOC received more than 30,000 harassment charges…. Employers agree that this issue is “an important and recurring issue of federal law.” In the modern workforce, where many acts of discrimination are committed by intermediate-level individuals in a large hierarchical organization such as Ball State University, resolution of this issue will undoubtedly add clarity to a great many employment discrimination disputes.

This case presents an excellent opportunity to settle this important issue.

Indeed, the federal appellate courts are split on this issue. The 1st, 3rd, 6th (which includes Ohio), and 8th agree with the 7th Circuit’s opinion in Vance v. Ball St. Univ., while the 2nd, 4th, and 9th Circuits, in addition to the EEOC, conclude that a supervisor is a supervisor regardless of the degree of oversight or control over the alleged victim of the harassment.

Hopefully, this case will settle this dispute and provide much needed clarity on the scope of an employer’s liability for unlawful harassment. This supposedly business-friendly Court has proven itself to be an ally of employees in recent cases. Will this trend continue? Much more on this case in the coming months, including an attempt to handicap the outcome after oral argument.

[Hat tip: Phil Miles’s Lawffice Space]

Sporadic and isolated comments: “Regarded as” claims under the New ADA vs. the Old ADA

The ADA protects three classes of “disabled” employees:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual;
2. Those with a record of such an impairment; and
3. Those regarded as having such an impairment.

To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental
impairment, and that the impairment was one with a duration of more than six months.

In Gecewicz v. Henry Ford Macomb Hosp. (6th Cir. 6/22/12) [pdf], the employer terminated Janice Gecewicz for accruing too many absence under its attendance policy. In her disability discrimiation lawsuit, Gecewicz, who had undergone eight surgeries during the last 10 years of her employment, claimed that the hospital regarded her as disabled. In support of her claim, she pointed to three statements made by her supervisor, Carol Rogers:

• “You’ve had a lot of surgeries for one person.” (made six years before her termination)
• “[Gastric bypass] is a very risky surgery.” (made five years before her termination)
• “If [you] didn’t have so many surgeries [you] wouldn’t have so much time off and [that you] need to take better care of [yourself].” (made one year before her termination)

The Court concluded that these remote and isolated statements could not support her “regarded as disabled” claim. The Court affirmed the trial court’s dismissal of the ADA claim, stating:

First, none of Rogers’s statements shows that she believed Gecewicz had a physical or mental impairment of a duration longer than six months. Second, … the concern reflected in each of Rogers’s statements—including the third statement … —centers on Gecewicz’s excessive absenteeism, not a perceived disability. Being absent from work is not a disability.

What is the takeaway for businesses? Train your managers and supervisors never to discuss employees’ medical issues. “Regarded as” claims under the ADA are dangerous. Gecewicz was decided under the pre-amendments ADA. Under the ADAAA’s “regarded as” prong, a plaintiff only has to prove the existence of an impairment, and no longer has to prove that the employer regarded the impairment as substantially limiting a major life activity.

Under the ADAAA (under which employers now operate), employers will have hard time demonstrating that statements about an employee’s surgeries are not related to an impairment. It is imperative that businesses drill into managers and supervisors that discussions about employees’ medical issues have no place in the workplace. Businesses cannot rely on the rationale of Gecewicz to bail them out under the ADAAA.

WIRTW #230 (the “2012 tour” edition)

I’m taking my act on the road. I have a slew of speaking engagements lined up between now and the end of the year. Let me know if you’re planning on attending any of these so that we can connect.

• Employees Online: Social Media at Work — Business Management Daily Webinar, July 11, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — Ashtabula Chamber of Commerce, July 26, 2012
• Employee Leave Rights and Employer Obligations — Ohio Chamber of Commerce HR Academy, September 12, 2012
• Employment Law in the Information Age: Best Practices for Employers — 7th Annual National Employment Practices Liability ExecuSummit, October 1, 2012
• Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace — GSMI HR Compliance Conference, October 16, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — COSE Small Business Conference, October 25, 2012

You can now keep track of all of my past and upcoming gigs at the brand new “Speaking Engagements” tab on the toolbar at the top.

Here’s the rest of what I read this week:

Discrimination

• REQUIRED READING: One of the Most Public Harassment Lawsuits You'll Ever See… — from The HR Capitalist, Kris Dunn
• Internal Probe Participation Triggers Title VII Protection, Court Holds — from Joe’s HR and Benefits Blog
• A Few Thoughts on “Ageism” in the Workplace — from New Jersey Employment Law Blog
• The EEOC Contends Lactation Is Covered by Title VII — from Hunton Employment & Labor Law Perspectives™
• HELP WANTED: Born-again Christians need only apply — from Eric Meyer’s The Employer Handbook Blog
• Fathers Take Employers to Court for Discrimination — from i-Sight Investigation Software Blog

Social Media & Workplace Technology

• Employers Can Use Apps to Track Employees—But Is It a Good Idea? — from Technology for HR
• Can I Protect My Trade Secrets Via Social Media Policy? — from Trade Secrets & Non-Compete Blog
• Juror Misconduct & Bias - Social Media Investigation — from From the Sidebar
• 20 Awesome Facts About Twitter – 2012 Edition — from Social Media for Law Firms

HR & Employee Relations

• Are You Ready For Take Your Dog To Work Day? — from Workplace Diva
• Chaucer, the Prioress, her Lip, and your Employee Handbook — from A Maryland Employment Lawyer Speaks
• Did you libel your employee in a panic and then find out you were wrong? Never be afraid to say you’re sorry — from Robin Shea’s Employment and Labor Insider
• Summertime is Here: Don’t Be A Victim of Background Check Shrinkage — from Nick Fishman’s employeescreenIQ Blog
• Performance Evaluations: Let’s Talk About It — from Molly DiBianca’s Delaware Employment Law Blog
• Pull Up Your SOX: The New Whistleblowing Claim Grows Up — from Dan Schwartz’s Connecticut Employment Law Blog
• The top 10 harassment excuses … and how to see through them — from Business Management Daily

Wage & Hour

• The DOL at Your Door – What Do You Do Now? — from Mike Haberman’s Omega HR Solutions
• “The new workplace revolution: wage and hour suits” — from Walter Olson’s Overlawyered
• Function Over Form: The Supreme Court’s Realistic View of the FLSA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Do Hours Worked On A Second Job Count Toward Overtime? — from Wage & Hour Insights
• Wage Theft On The Rise — from Overtime Lawyer Blog
• Tenth Circuit dismisses claim by employee who was fired while on FMLA leave — from EmployerLINC
• Family and Medical Leave Act Webinar and Employee Guide — from Laconic Law Blog

Labor Relations

• Does Your Compensation Policy Violate NLRA? — from Stephanie Thomas at Compensation Cafe
• U.S. Unions: Uncivil On Civil Rights — from Forbes
• State Of The Unions: Labor And The Middle Class — from NPR’s All Things Considered

6th Circuit moves the line between same-sex harassment and bullying

Oil rigs must be awful places to work. Oncale v. Sundowner Offshore Services—the U.S. Supreme Court case the first recognized that Title VII protected employees from same-sex harassment (and which included allegations such as name-calling suggesting homosexuality, physical assaults, and attempted rape)—involved an oil platform. Yesterday, the 6th Circuit decided Wasek v. Arrow Energy Services [pdf], another same-sex harassment case involving oil rig employees. Wasek, however, did not turn out as well for the complaining employee as did Oncale.

To save money after accepting a job with Arrow Energy, Harold Wasek decided to share a hotel room with one of his new co-workers, Paul Ottobre. As it turns out, that decision proved to be a poor one. Ottobre tormented Wasek by grabbing his buttocks, poking him in the rear with a hammer handle and long sucker rod, making comments such as “you’ve got a pretty mouth,” “boy you have pretty lips,” and “you know you like it sweetheart,” telling sexually explicit jokes, stories, fantasies, and calling Wasek names. Wasek believed that Ottobre acted like this because he was bisexual.

When Wasek complained, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” When Wasek pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek could not handle it he “should find another line of work.”

The 6th Circuit affirmed the dismissal of Wasek’s harassment claim:

Title VII is not “a general civility code for the American workplace.” … [T]he conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim’s gender….

No evidence exists that Ottobre was motivated by a general hostility towards men. And the oil rig was not a mixed-sex workplace, so there is no possibility of comparative evidence. Thus, in order to infer discrimination, Wasek must demonstrate that Ottobre was homosexual. In his deposition, Wasek speculated that Ottobre was “a little strange, possibly bisexual.”

We need not delve into what inferences — if any — might be drawn from a harasser’s bisexuality. A single speculative statement in a deposition cannot be the first link in the “chain of inference” that Oncale recognizes may follow from the harasser’s nonheterosexuality…. Therefore, Wasek’s Title VII hostile work environment claim cannot survive.

Advocates will argue that this case is proof of why we need legislation against generalized workplace bullying. To the contrary, the troubling aspect of this case is not the dismissal of the harassment claim, but the dismissal of Wasek’s retaliation claim (an issue that will get its own post next week).

Regardless of where you stand on the issue of whether there should exist a law against workplace bullying, employers should use this case as a teaching tool on how not to respond to a harassment complaint. It is shameful that the supervisors’ told Wasek to stop whining, suggested fisticuffs to settle the issue, and ultimately chalked it up to the nature of the workplace. There are a million better ways this employer could have handled these complaints, and not have to rely on a legal argument that this misconduct is not actionable Title VII harassment.

Pop quiz: Can you condition a job offer on a withdrawal of an EEOC charge?

Consider the following chain of events:

1. 8/14: Pregnant Employee, armed with a doctor’s note, asks for modified duty, and employer terminates her.
2. 8/15: Employee files an EEOC charge.
3. 8/18: Employer reconsiders, changes its mind, and decides to offer a light-duty position, consistent with its policy to offer available light-duty positions to employees with medical conditions.
4. 8/20 – 8/28: Employer receives notice of EEOC charge.
5. 8/28: Employer communicates offer of light duty position to Employee, but on the condition that she drop her EEOC charge.
6. 8/29 and thereafter: Employee refuses job offer, and is never offered another position with the company.

Did this employer retaliate by conditioning the light-duty job offer on the employee dropping her EEOC charge? According to Chapter 7 Trustee v. Gate Gourmet, Inc. (11th Cir. June 11, 2012), the answer is an unconditional “yes.”

A jury reasonably could find from the sequence of events that Gate Gourmet decided to unconditionally offer Williams the light-duty silverware wrapper position and would have done so but for the fact that she filed an EEOC charge. Once it learned that she had, Gate Gourmet changed what would have been an unconditional offer into a conditional offer in which she could have the position (with back pay) only if she dropped the charge. When Williams would not drop it, Gate Gourmet rescinded the offer. This permissible interpretation of the evidence creates a reasonable inference that the statutorily protected filing of and refusal to settle the EEOC charge caused Gate Gourmet to deny Williams a light-duty position, which is a materially adverse action.

I’ve written before how employers must treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. Because this employer had a policy to offer available light-duty positions to employees with medical conditions, it was required to offer the light-duty silverware wrapper position to Williams. That it decided to rescind its offer only after receiving notice of Williams’s EEOC charge is unconditionally and unlawfully retaliatory.

Reaching the 93%: NLRB launches webpage describing protected concerted activity

When asked the type of law I practice, I always respond with “management-side labor and employment law.” In reality, while I have many successful engagements under my belt in the world of traditional labor law, I am much more of an employment attorney than a labor attorney. And, if you ask 100 management-side labor and employment lawyers whether they identify more with labor law or employment law, at least 95 will tell you employment law. It’s not our fault. It’s just that as union membership has dwindled, so have the opportunities to practice traditional labor law.

Currently, only 7 percent of private sector employees belong to a labor union. Doing the math, that leaves 93 percent of the private sector workforce as non-unionized. Yet, the National Labor Relations Board’s ability to impact the workplace is not limited by unions’ 7 percent reach.

Yesterday, the NLRB launched a webpage dedicated to protected concerted activity, which highlights 12 recent cases litigated by the NLRB involving protected concerted activity. According to the NLRB:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away (emphasis added).

Trust me, it’s not a coincidence that the phrase “even if they aren’t in a union” prominently appears on this webpage above the fold. It’s a calculated public relations strategy.

According to the NLRB, “Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.” If the agency is being honest, I bet it would want to add a zero after that 5. The NLRB wants to be the go-to agency for employees fired for talking about work. It is in the process of reinventing itself so that it remains relevant, even as labor unions become increasingly irrelevant. Businesses must prepare themselves for increased knowledge by their employees on these issues, along with the increased enforcement efforts by the NLRB.

BREAKING: SCOTUS rules pharmaceutical reps are exempt outside salespeople

Today brings a bonus second post, because the Supreme Court just released its long-awaited ruling in Christopher v. SmithKline Beecham Corp. [pdf] The Supreme Court, by a 5-4 margin, held that pharmaceutical sales representatives are exempt, outside salespeople to whom employers need not pay overtime.

For all of the background on this case you could want, click through the following from my archives:

• Supreme Court to hear case on scope of outside sales exemption (and hopefully scope of DOL’s power)
• 2nd Circuit issues groundbreaking ruling on sales reps and overtime payments
• Do you know? The FLSA’s exemptions for salespeople

In summary, the Court concluded the following:

     1. To be considered a salesperson, one need to actually consummate a transaction. It is sufficient that the promotional work performed by the employee can lead to a sale.

This rationale rebukes the argument of the Department of Labor, which the Court called “quite unpersuasive” and lacking the hallmarks of thorough consideration.”

     2. Non-binding commitments from physicians to prescribe certain drugs qualify as sales under the FLSA’s outside sales exemption.

This rationale applies a common-sense approach to a statute that is often confusing and too rigidly applied.

To me, the following is the million dollar quote from the Court:

Our holding also comports with the apparent purpose of the FLSA’s exemption for outside salesmen. The exemp­tion is premised on the belief that exempt employees “typically earned salaries well above the minimum wage” and enjoyed other benefits that “set them apart from the nonexempt workers entitled to overtime pay.” … It was also thought that exempt employees per­formed a kind of work that “was difficult to standardize to any time frame and could not be easily spread to other workers after 40 hours in a week, making compliance with the overtime provisions difficult and generally precluding the potential job expansion intended by the FLSA’s time­ and-a-half overtime premium.” … Petitioners—each of whom earned an average of more than $70,000 per year and spent between 10 and 20 hours outside normal busi­ness hours each week performing work related to his as­ signed portfolio of drugs in his assigned sales territory—are hardly the kind of employees that the FLSA was intended to protect. And it would be challenging, to say the least, for pharmaceutical companies to compensate detailers for overtime going forward without significantly changing the nature of that position.

I have long argued that the FLSA is an anachronistic maze of rules and regulations that does not well fit within the realities of the 21st century workplace. It seems that at least 5 members of the Supreme Court are inclined to agree with me. This excerpt provides hope for businesses that in the face of an overly-active Department of Labor and an overly confusing statute, courts can provide relief by adopting common sense interpretations.

For more on this important SCOTUS ruling, you can read the early reactions of some of my blogging friends (I’m certain more of the employment law blogging illuminati will weigh in today and tomorrow):

• Dan Schwartz’s Connecticut Employment Law Blog
• Phil Miles’s Lawffice Space

Plagiarism (a story with a happy ending)

I made a startling discovery on Friday. In last week’s WIRTW, I gave a shout out to the Meritas Social Media Guide for Lawyers v. 2.0. (In the name of full disclosure, my law firm, Kohrman Jackson & Krantz, is the Cleveland member firm of Meritas, an international alliance of full-service law firms, and its Social Media Guide features my blog.) One of the guide’s authors, Ethan Wall, took to Twitter to thank Daily Legal Law for mentioning the Social Media Guide. The only problem is that Daily Legal Law had plagiarized my column from Friday, reprinting it word for word.

I am all for other websites and blogs being so enamored with my content that they want to run it on their sites. Please, have the kindness to email me first to ask permission (I rarely say no), and then provide proper attribution. Don’t copy and paste my copyrighted content, and exacerbate your evilness by listing someone else as the author.

This story has a happy ending. Five minutes of easy research led me to DailyLegalLaw.com’s web host, HostGator, to whom I sent a takedown letter under the Digital Millennium Copyright Act. Yesterday, I received the following email from HostGator:

HostGator took down the entire website. If you visit DailyLegalLaw.com, this message is all you will find:

If you have employees posting content for your business online, remind them that plagiarism is illegal, that copyrights have meaning, that violating others intellectual property rights has consequences for the company (such as infringement lawsuits, civil fines, and criminal penalties), and that plagiarism is a terminable offense. Build these ideas into your social media, online communication, or similar policy, and re-enforce the concept in the training of your employees on responsible and legal online communications. Also, if you are regularly publishing content, it is wise to monitor the Web to check for stolen content, so that you can act swiftly to protect your IP.

To the proprietors of DailyLegalLaw.com: If you are going to steal copyrighted material, at least have enough common sense not to steal it from the one group certain enough to know how to protect their IP rights—attorneys. DailyLegalLaw.com, you are free to copy this post (and only this post) and paste it, in its entirety, on any of your other websites.

WIRTW #229 (the “turn the world on with her smile” edition)

I’ve never seen a full episode of The Mary Tyler Moore Show. Thus, I did not understand why Workforce ranked it as a number 1 seed in its 90th Anniversary Pop Culture Bracket. I’m a child of the 80s, and Cheers (under-seeded as an 8, by the way) has always made more sense as a workplace comedy. That is, until last night. I walked into my in-laws house and this was on their TV:

Now it all makes sense. And I’m going to start catching up on this lost gem on Hulu.

Here’s the rest of what I read this week (and last week):

Discrimination

• “Discrimination lawsuits double as definition of ‘disability’ expands” — from Walter Olson’s Overlawyered
• TSA Screener May Wear Religious Bracelet While on Duty — from Joe’s HR and Benefits Blog
• Be Careful What You Wish For: Walmart Faces Thousands of Lawsuits as Result of Class Action Victory — from Chris McKinney’s Texas Employment Law Blog
• After partial victory, plaintiff seeks cert in 5th Circuit same-sex harassment case — from Mike Maslanka’s Work Matters
• Customer Created Hostile Work Environments as told through a Homer (Simpson) Like Epic of Naked Golf, Butt Skills & Club House Beatings — from Jason Shinn’s Michigan Employment Law Advisor
• Association Is Not A Protected Category or Is It? — from Mike Haberman’s Omega HR Solutions
• EEOC brews up case — from BostonHerald.com

Social Media & Workplace Technology

• The Social Media Guide for Lawyers v. 2.0 — from Ethan Wall’s Social Media Law & Order
• Employers, Are Your Employees Minding Their Own Business? — from Molly DiBianca’s Delaware Employment Law Blog
• US Social Media by the Numbers – May 2012 — from Jessica Miller-Merrell’s Blogging4Jobs 
• Uses of Social Media for Corporate Counsel - Investigating & Defending Claims — from From the Sidebar
• 7 Essentials of a Social Media Policy That’s Actually Useful — from Radian6
• Is Your Workplace BYOD? Know the Risks! — from Stephanie Thomas’s The Proactive Employer Blog
• BYOD wave sparks big security concerns — from TheAppleBlog

HR & Employee Relations

• Do Noncompetes Kill Creativity? — from Phil Miles’s Lawffice Space
• Valid Arguments on Both Sides Re: Use of Credit Reports for Employment Screening — from Nick Fishman’s employeescreenIQ Blog
• No flush, but two of a kind win in a workplace toilet dispute — from Eric Meyer’s The Employer Handbook Blog
• Office love contract policy: What does this mean to you? — from Employment Law Bits
• Should couples work for the same company? — from Suzanne Lucas (Evil HR Lady) at CBS Money Watch
• You’re Damned if You Fire an Employee At Will for No Reason — from damnedif
• Some Hiring Managers Rate the Attractiveness of Your Spouse… — from The HR Capitalist, Kris Dunn
• Mastering the Finer Points of American Slang — from Alina Dizik at The Wall Street Journal

Wage & Hour

• How Is 2012 Like 1947? — from Wage and Hour Laws Blog
• Myles v. Prosperity Mortgage: Dukes Inapplicable to FLSA Certification — from Impact Litigation Journal
• Can Your Boss Fire You For Taking Vacation? — from by Donna Ballman’s Screw You Guys, I’m Going Home

Labor Relations

• Guest Post: NLRB Acting General Counsel Addresses At-Will Disclaimers and More at CBA Annual Meeting — from Dan Schwartz’s Connecticut Employment Law Blog
• The NLRB Acting General Counsel’s third memo on social media: Not so fast — from John Holmquist’s Michigan Employment Law Connection
• Workers Win Facebook Fight Against Huge Supermarket Chain — from Workplace Fairness
• Who Can It Be Now: Employers Told to Know Who Their Supervisors Are — from Employment Essentials
• NLRB Returns for Round Two in Fight for “Ambush” Elections — from LaborPains.org
• Are Unions Necessary? Great Post from The Atlantic — from Labor Relations Institute
• Duke Study Suggests That “Unions Are Better For Your Health” — from TLNT

25 million reasons to tell a good story

Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in.

The allegations of racial harassment in Turley v. ISG Lackawanna Inc. are horrible. They involve graffiti about King Kong and the KKK, a toy monkey with a noose around its neck tied to the plaintiff’s car, and death threats. For the full flavor, I recommend reading the court’s opinion denying (in part) the employer’s motion for summary judgment.

Yesterday, the jury returned a $25 million verdict in favor of Mr. Turley on his claims of racial harassment and intentional infliction of emotional distress. According to the Buffalo News, one of the employer’s themes at trial was that “much of what happened at the steel plant is the kind of ‘trash-talking’ that’s common in manufacturing facilities.”

I once handled a case with similarly egregious allegations of racial harassment (KKK graffiti, liberal n-bombs, threats to drag the plaintiff tied to a truck, and a fistfight with his allegedly racist supervisor). The case settled on the eve of trial for several decimal points less than $25 million.

At trial, I was not planning on debasing the plaintiff’s allegations by challenging their veracity (there were too many witnesses that would verify most of them), or by portraying the events as something they were not—such as horseplay or trash-talking. Instead, I built my case around the fact that the plaintiff had resigned in the face of these allegations and voluntarily chose to return to the same workplace a few months later. He only sued (I would argue) out of embarrassment after losing a fight. In other words, I was planning to try the case by challenging the plaintiff’s perception of the workplace and the harm it caused him, not the racial motivation of his co-workers.

I know nothing about Turley v. ISG Lackawanna other than what I’ve read in the above-linked opinion and news story. But, it strikes me that likening KKK graffiti and a toy monkey with a noose around its neck as common “trash talking” is a recipe for a disaster, even if $25 million strikes me as excessive.

Vague complaint dooms employee’s retaliation lawsuit

Susanne Pintagro worked for Sagamore Hills Township as an administrative assistant. When a newly hired intern made her feel “uncomfortable and concerned for [her] safety” she took her concerns to the township’s trustees. The trustees determined that because Ms. Pintagro and the intern had to work the same schedule, and gave her the choice of resignation or termination. After Ms. Pintagro resigned, she sued, claiming, among other things, that the township retaliated against her for reporting the intern’s workplace harassment.

In Pintagro v. Sagamore Hills Twp. (Ohio Ct. App. 5/23/12), the court of appeals affirmed the dismissal of her retaliation claim. It concluded that Ms. Pintagro had not engaged in protected activity sufficient to raise the protections of Ohio’s anti-retaliation statute:

It was Ms. Pintagro’s burden … to establish that she engaged in a protected activity, that is, to demonstrate that she “opposed an unlawful discriminatory practice” such as harassment because of her “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” …

Ms. Pintagro also has not presented any authority for her argument that a court should infer discriminatory intent when an employer fails to investigate a claim of workplace harassment…. Even assuming that [the] actions constituted harassment, it is as likely that his conduct was motivated by a personality conflict or other non-discriminatory reasons as it is that it was motivated by prejudice.

In other words, because Ms. Pintagro could not prove that she complained about unlawful harassment, her retaliation claim failed.

Repeat after me:

We will not do what Sagamore Hills Township did in this case.

When an employee comes to you with a complaint about a co-worker, do not ignore it, do not fail to investigate it, and do not fire the employee (or force her to resign). Yes, you might successfully defend a subsequent retaliation lawsuit based on the vagueness of the complaint. But, you might also step in a huge pile. This court refused to interpret a woman’s complaint than a man made her “uncomfortable and concerned for [her] safety” as a complaint about sexual harassment. Another court, however, could just as easily conclude that a jury should have the final say in interpreting that complaint.

Constructive discharges cannot exist in a vacuum of illegality

A constructive discharge occurs when an employer’s actions make an employee’s working conditions so intolerable that a reasonable person under the circumstances would feel compelled to resign. Usually, a constructive discharge arises in the context of a discrimination lawsuit, satisfying the “adverse action” necessary to support the claim.

What happens, though, when there is no connection between the resignation and the law alleged to have been violated. Can an employee claim that a constructive discharge occurred in this vacuum? Kemper v. Springfield Twp. (Ohio Ct. App. 6/6/12), says no.

Patrick Kemper worked as a patrolman for the Springfield Township police department. The department had a formal policy requiring employees to submit a written request, and receive written permission, before engaging in outside work. Kemper planned to start a side security business. He discussed the idea with his supervisor, Chief David Heimpold, who told him that there would have to be precautions to prevent any conflict with police business. A few months later, Kemper submitted a letter to the department misstating that Heimpold had given permission to operate the business. When the township administrator, Michael Hinnenkamp, confronted Kemper with his lie, and with the prospect of an internal investigation, likely termination, and the loss of his pension and benefits, he resigned.

Kemper sued, claiming a constructive discharge related to an FMLA leave he was taking at the time. The jury awarded Kemper $491,000. The court of appeals agreed that the township had constructively discharged Kemper:

Hinnenkamp let it be known that any disciplinary proceeding would in all likelihood end in termination and that Kemper would lose his pension and other benefits…. Kemper had reasonably believed termination to be a foregone conclusion….

The court concluded, however, that the constructive discharge was lawful: 

But our inquiry does not end with the conclusion that Kemper produced sufficient evidence with respect to the alleged constructive discharge. A plaintiff must also establish a connection between the exercise of FMLA rights and the adverse employment action…. All of the evidence demonstrated that Kemper’s acknowledged dishonesty was the basis for the challenged discharge. There was no threat of discipline prior to the letter submitted to Heimpold and no indication in the record that Kemper's absences—or the conditions that led to those absences—bore any relationship to the adverse employment action.

Employees resign all the time, sometimes for reasons related to poor treatment by their employers. As this case makes clear, unless that poor treatment is connected to protections provided by the law, the resignation cannot form the basis for a lawsuit.

Know when to fish, and when to cut bait

I spent last week on Hilton Head Island, South Carolina. If you’ve never been there, do yourself a favor a take a trip. It's about as perfect of a vacation spot you can find in the continental 48 (see sunset below).

On the last day of our vacation, my family took a dolphin cruise through the Calibogue Sound. It was a hands-on trip for the kids. They got to cast a fishing net, pull up a crab pot, and fish for shark. The ship’s captain told us that they usually catch a lot of shark. For example, the day earlier they had reeled in 19, including two baby hammerheads. So, it was with much excitement that my daughter cast her line into the sound. After about 5 minutes (an eternity for a 6-year-old) she started asking when she would catch her shark. My wife explained that fishing is more about patience and relaxation than actually catching fish. As you would imagine, that did not go over so well with my newly minted 1st grader, although she did stick with it and enjoyed the experience. We, however, were not the only ones having issues. The captain moved the boat to what he hoped would be more fertile water. It wasn’t. She moved again, hoping the third time would be the charm. It wasn’t, and she had to call it a day. Indeed, on our cruise, only one lone shark was reeled in (by the boy next to us, much to my daughter’s chagrin).

As I am wont to do when I am not blogging, I began to think about what this tale could teach you, my readers. Much like fishing, in dealing with marginally performing workers, employers must know when to fish and when to call it a day. And, much like our ship’s captain, you usually don’t quit at the 1st sign of failure.

Employees are investments—of time, training, salary, and benefits. Unless an employee commits an egregious violation of the rules that cannot be tolerated, most deserve multiple chances to prove themselves worthy. Performance problems are not terminable offenses; they are teaching opportunities. Use them to hone your employees, and only terminate when an employee proves himself or herself un-teachable. You will be surprised how many employees you can rehabilitate (and investments you can save) merely by resisting the urge to cut bait too early on your marginal performers.

I’ll miss experiencing the sunsets at Harbour Town, but I’m happy to be home, and, believe it or not, happy to be back at work.

(If you’re interested in reading more about our vacation—and who wouldn’t be—you can jump over to my wife’s blog).

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http://www.ohioemployerlawblog.com/2012/03/despite-what-some-think-employers-do.html

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http://www.ohioemployerlawblog.com/2012/01/friending-co-workers-depends-on-your.html

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http://www.ohioemployerlawblog.com/2012/02/latest-stats-about-supervisors-being.html

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