Every year I worry about how Iâm going to fill my annual list of worst employers. Iâve yet to be disappointed.
The EEOC recently filed suit against a Medford, Oregon, Chinese restaurant after its middle-aged night-shift manager repeatedly sexually harassed young female employees.
The allegations are horrific. The manager is accused of the following.
Repeatedly making sexual comments, sexual innuendos, and remarks to female employees.
Repeatedly touching female employeesâ backs, shoulders, waist, hip/crotch area, buttocks, rubbing his body up against female employeesâ bodies, and standing close behind female employees and staring at them.
Repeatedly touching the breasts of female employees including putting his hand under a female employeeâs shirt and bra.
Pulling on the shirt and bra of a female employee to expose her nipple.
Asking a 15-year-old female employee to send him naked photos of herself.
Yet, those allegations, as awful as they are, arenât what earned this employer its nomination. Itâs what happened after the victims complained that placed this employer on this yearâs list.
Even after the manager ⌠was arrested at work and booked for sexual abuse of the restaurantâs minor employee, he was permitted to return to work.⌠Despite repeated employee complaints and the managerâs guilty plea to misdemeanor harassment, the restaurant failed to stop his behavior or discharge him. Instead, New China fired one female employee soon after she reported his inappropriate conduct and another female employee felt she had no choice but to resign.
If you enable your 50-something manager to sexually harass your teenage workforce, even after employees complain and heâs arrested for and convicted of harassment, you might be the worst employer of 2020.
Buddy Phillips injured his ribs while playing with his grandchildren.
Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.
He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.
In Phillips v. United Trailers, the 7th Circuit Court of Appeals held that in this instance, the employeeâs FMLA rights trumped the employerâs attendance and reporting policy.
Even if Phillips failed to comply with the FMLA by failing to report his absences, he did so after United would have violated the FMLA. Phillips stopped calling in to work at least nine business days after he first reported his rib injury to United. Under the regulations, United had five business days after receiving notice of Phillipsâs rib injury to determine whether he qualified for FMLA leave.
In other words, an employer cannot rely on its attendance and reporting-off policy to terminate an AWOL employee if the employer is already on notice that an FMLA-qualifying event might be the cause of the employeeâs unreported absences.
So what should an employer do in this situation, when an employee might have triggered the FMLAâs protections? The FMLAâs regulations offer some guidance.
If the need for leave is foreseeable to the employee, it’s a much easier issue. The employee must give 30 days notice, which gives the employer and the employee more than enough time to work out their leave and attendance issues.
If the need for leave is unforeseeable, however, the employee must provide notice of his intent to take leave to the employer as soon as practical under the circumstances. That notice must âprovide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.â Critically, an employee âneed not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.â
The burden then shifts to the employer. The employer must decide whether to designate the request for leave as FMLA-qualifying. Its decision to designate FMLA leave âmust be based only on information received from the employee.â If the employer lacks information about the reason for an employeeâs request for leave, the employer should inquire further of the employee to determine whether leave is potentially FMLA-qualifying. The employer should not, however, bury its head in the sand and ignore the employee, because if the leave turns out to be FMLA-covered, the employer will have a big legal problem. Just ask United Trailers.
Importantly, the employer only has five business days to notify the employee whether leave will be designated as FMLA-qualifying, absent extenuating circumstances.
Throughout this back-and-forth time period, the employee must comply with the employerâs âusual and customary notice and procedural requirements for requesting leave.â If the employee does not comply with the employerâs usual leave-request requirements, the employer is within its rights to deny or delay the FMLA leave. If, however, the employee provides notice and complies with the employerâs attendance policy, the employerâs failure to timely determine whether the employeeâs leave counts as FMLA-qualifying may constitute an interference with the employeeâs FMLA rights.
These are complicated issues that often do not have cut-and-dried answers and can carry seriously expensive consequences for an employerâs missteps. If an employee presents you with an injury- or illness-related absence that may or may not qualify for FMLA protections, your first call should be to your employment lawyer to make sure that you are handling this issue correctly under the FMLAâs maze of rules and regulations.
An African-American employee claims he suffered rampant discrimination at the towing company at which he worked, including being called racial slurs.
But thatâs not what qualifies A&B Towing for its nomination as the Worst Employer of 2020. Itâs what happened to Michael Fesser after he complained to his boss about the discrimination and harassment that is truly eye-opening and offensive. NBC News has the details:
West Linn police began investigating Fesser in February 2017 after Fesser raised concerns to his boss, Eric Benson, owner of A&B Towing, that he was being racially discriminated against at work. âŚ
After he raised his concerns, Benson contacted West Linn Police Chief Terry Timeus, his friend, and persuaded to look into allegations that Fesser had stolen from the company, according to the lawsuit.
The suit said the theft allegations were false and unsubstantiated.
But with the approval of West Linn police Lt. Mike Stradley, Detectives Tony Reeves and Mike Boyd used audio and video equipment to watch Fesser while he was at work, according to the suit. The surveillance was âconducted without a warrant or probable causeâ and did not result in any evidence that Fesser was stealing from his employer, the lawsuit stated.
Regardless, West Linn officers, with the help of Portland police officers, arrested Fesser days later based on Reevesâ and Stradleyâs âfalse representationsâ to Portland police that they had probable cause for an arrest. âŚ
Fesser spent about eight hours at the police station before he was released on his own recognizance. He was later contacted by West Linn police to come to the station to retrieve some of his belongings. While he was there, officers informed Fesser that he had been fired from his job, according to the lawsuit. âŚ
According to the lawsuit, criminal charges in the arrest werenât filed until after Fesser sued his employer over his termination and for discrimination. The charges were later dismissed.
If you call in a friendly favor to the chief of police to have an employee falsely arrested after that employee complains of workplace discrimination and harassment, you might be the worst employer of 2020.
Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.
DâMarius Allen worked as an EMT for Ambu-Stat, owned by husband and wife Santos and Rita Ortiz. During the four months Allen worked for Ambu-Stat, she claimed that Santos subjected her to sporadic instances of verbal sexual harassment. For example, he told her she was âprettyâ and âfine as hell.â She also alleged he made three sexually suggestive comments to her.
Three months into Allenâs employment, Rita called her into her office and accused her of discussing her sex life with Santos. Allen demurred that Santos started any sexual conversations between them. Rita ended that meeting by warning Allen that it was inappropriate to discuss her personal life with Santos, as he was her employer. One week later, Rita delivered a disciplinary employee correction form to Allen for having had an âinappropriate conversationâ with Santos while on duty. The form stated that âhaving such conversations while on duty with co-workers (or especially with my husband) is extremely inappropriate and unacceptable.â
Allen responded by explaining to Rita, in writing, that Santos had asked her if her boyfriend was good at oral sex, in response to a lyric in a song on the radio. Allen also wrote that she did want to be âinvolved in any sexual harassment.â Finding Allenâs explanation to be âoutlandish,â âdisturbing,â and âfull of lies,â Rita terminated her.
The 11th Circuit Court of Appeals affirmed the district courtâs dismissal of Allenâs retaliation claim. The court differentiated between bona fide opposition to unlawful discrimination or harassment (protected), as compared to an attempt to apologize and mend fences (not protected). The court concluded that Allen had engaged in the latter. Case dismissed. Employer wins.
This decision is baffling. Allen was in an extraordinarily difficult situation, harassed by one owner-spouse and having to justify her action to the other owner-spouse. She should not have to use âmagic wordsâ to express her discomfort in the situation. (Never mind that she actually did use the magic word âharassmentâ.)
An employer has the same anti-harassment and anti-retaliation obligations to an employee whether the accused harasser is a line worker or an owner. Take the allegations seriously, investigate, correct and do not retaliate. Ambu-Stat failed on each of these steps and is very lucky to have walked out of this case free and clear.
Earlier this year, Amazon threatened to fire two employees who spoke out against the companyâs stance on climate change. In addition, the company also issued a new employee communications policy.
The protest started last April when a group calling itself Amazon Employees for Climate Justice published a letter signed by more than 8,700 employees. It called on Amazon to adopt a company-wide plan to address climate change. As the protests intensified, Amazon ultimately reacted with the new policy and the job threats.
What legal issues do these employee protests, and Amazonâs reaction, raise?
Kate Bischoff and I had the pleasure of guesting on the XpertHR Podcast to share our thoughts. You can listen below, or in your podcast app of choice.
Spotify recently announced that it is acquiring The Ringer, one of the most prolific and popular podcasting networks.
Spotify also indicated that it intends to hire all of The Ringer’s 90 employees, most of whom work on theringer.com, which covers sports and culture and which Spotify indicates it will keep up and running.
Last summer, 66 of those 90 employees signed union-authorization cards stating their support for the Writers Guild of America East to represent them as their collective bargaining representative. Shortly thereafter, The Ringer management voluntarily recognized the Guild as the union representative for its employees.
What does this mean for Spotify? Is it acquiring a labor union as part of its purchase of The Ringer? Like most legal questions, the answer depends on a number of factors.
The primary question relates to the structure of the deal itself. Is it a stock purchase or an asset purchase?
If itâs a stock purchase â the buyer is acquiring all of the stock of the seller â this issue is much easier to solve. In a stock purchase, the buyer stands in the place of the seller and becomes responsible for all of the sellerâs obligations, including its union-related obligations and any existing collective bargaining agreements. In other words, if Spotify purchased all of the stock of The Ringer, then Spotify is almost certainly acquiring its union and related obligations.
The fact that Spotify said that it intends to hire all of The Ringerâs employees, however, makes me think this deal is an asset purchase and not a stock purchase. And in an asset purchase, these issues are much more complex.
In an asset deal, the buyer assumes some, but not necessarily all, of the sellerâs union-related obligations, but only if the buyer is a âsuccessor employer.â A buyer is deemed to be a successor employer when it continues the predecessorâs business and hires a majority of its employees from the predecessorâs union employees.
A successor-buyer must recognize and bargain with the union, but it does not necessarily adopt the predecessorâs collective bargaining agreement. Instead, the buyer is usually free to set its own initial terms and conditions of employment before bargaining in good faith to a new collective bargaining agreement (as long as the buyer does not mislead employees into believing they will be re-hired without changes to their terms and conditions of employment, which will lock the buyer into the old agreement).
What I hope you take away from todayâs post is the complexity of these issues. If you are involved in the sale or purchase of a business that has unionized employees, you absolutely need to involve labor counsel in the deal so that the parties understand what union-related rights are being bought and sold.
Whether we are Republican, Democrat, or independent, surely we must all agree that every human life is a sacred gift from God. As we support Americaâs moms and dads, I was recently proud to sign the law providing new parents in the federal workforce paid family leave, serving as a model for the rest of the country.
Now I call on Congress to pass the bipartisan Advancing Support for Working Families Act, extending family leave to mothers and fathers all across our nation.
Itâs a bipartisan bill that would provide new parents the ability to borrow against the future tax benefit from their $5,000 federal Child Tax Credit, in the form of a $500 allowance for 10 years.
There is little doubt that the United States needs to do something (anything) to provide new parents with some form of paid family leave. I have serious concerns, however, over a proposal that requires parents to borrow against a future tax credit to take that benefit. I have further concerns over a proposal that does not protect parents who avail themselves of that benefit from retaliation.
Itâs good that we are having a national conversation about paid parental and family leave. It will be better when we start talking about proposed laws that will provide real and actual benefits and employment protections to parents.
And it will be best when Congress and the White House get off their collective asses and pass meaningful legislation.
An employer requires âdirect observationâ of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy.
The employer sends an individual of the same sex to accompany the tested employee into a restroom designated for the sample collection to visually observe the employee producing the sample. The employerâs substance abuse policy and the consent and release form provide for the testing, neither discloses or provides for the direct observation of the sample production.
These are the facts of Lunsford v. Sterilite of Ohio, in which the Ohio Supreme Court will decide whether a private-sector, at-will employee who agrees to drug testing as a condition of continued employment has a reasonable expectation of privacy during mandatory drug screening.
The court of appeals determined that the direct observation method of urine-sample collection is an unlawful invasion of the employeesâ common law right to privacy. âWe find appellants did have a reasonable expectation of privacy with regard to exposure of their genitals.â The issue wasnât whether the collection itself violated the employeesâ privacy. It doesnât. As the appellate court explained, â[A]n employee consenting to a drug test waives the right to complain that his urine is collected and tested.â However, in this case, the employees âhad an expectation of privacy with regard to their bodies and ⌠the compelled exposure of their genitals and compelled urination before a stranger intruded upon that privacy.â
The Ohio Supreme Court, which held oral argument in this case last week, will now decide this fascinating issue.
If you watch the oral argument, you will not witness a whole lot of outrage toward the employer from my stateâs notoriously business-friendly Supreme Court. While this case will likely be a win for the employer, it does not mean that your business should across-the-board adopt âdirect observationâ as the process for your drug testing. To me, itâs a horribly offensive practice that should only be used if necessary, and only after disclosure to, and consent by, the observed employee.
What advice would I provide if a client comes to me and asks about a âdirect observationâ policy?
Iâd ask, âWhy?â What are you trying to achieve? Are there less obtrusive means available to prevent employees from cheating a drug test (e.g., searches before they enter the restroom, pat-downs, etc.)? Does it make more sense to limit direct observation to situations in which you have a reasonable suspicion of cheating?
Make sure all employees have notice of the direct observation and when you might use it. Unlike the employer in this case, put it in your drug-testing policy, and have employees sign off on it as an express condition of employment. With notice and consent, they cannot complain about an invasion of privacy, as theyâve voluntarily sacrificed that right.
Just because Ohioâs Supreme Court will likely grant a thumbs-up to Steriliteâs policy in this case, it does not mean that the policy makes for good HR or that itâs one that you should adopt in your workplace. Instead, consider what goals you hope to advance with your drug-testing policy and tailor it accordingly.
A judge in the United Kingdom has ruled that âethical veganismâ is a protected class akin to religion and is protected from workplace discrimination. The Washington Post shares the details:
An employment tribunal made that landmark determination in a case involving a man who claimed he was fired from his job at an animal rights organization for revealing to colleagues that their pension funds were invested in companies that experiment on animals. The tribunal has yet to rule on the merits of the case, but it did on Friday take the step of deciding that the manâs ethical veganism constitutes a âphilosophical and religious beliefâ protected by anti-discrimination law.
Thatâs the United Kingdom. What about the United States? Well, it depends.
There are two leading cases on this issue.
In Chenzira v. Cincinnati Childrenâs Hosp. Med. Ctr. (S.D. Ohio 2012), the federal court denied the hospitalâs motion to dismiss the employeeâs religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenziraâa customer service representative who refused a flu vaccine because it contained animal by-productsâcited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation. In denying the motion to dismiss, the court stated:
The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.
Contrarily, in Friedman v. Southern California Permanente Medical Group (Cal. Ct. App. 2002), the state appellate court dismissed the religious discrimination claims of a vegan IT worker who refused a mumps vaccine for similar reasons as Chenzira. He claimed the vaccine âwould violate his system of beliefs and would be considered immoral by him,â which resulted in the withdrawal of his employment offer. The court concluded that veganism is not a protected religion:
We do not question plaintiffâs allegation that his beliefs are sincerely held; it is presumed as a matter of law that they are.⌠There is no allegation or judicially noticeable evidence plaintiffs belief system addresses fundamental or ultimate questions. There is no claim that veganism speaks to: the meaning of human existence; the purpose of life; theories of humankindâs nature or its place in the universe; matters of human life and death; or the exercise of faith. There is no apparent spiritual or otherworldly component to plaintiffs beliefs. Rather, plaintiff alleges a moral and ethical creed limited to the single subject of highly valuing animal life and ordering oneâs life based on that perspective. While veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.
In other words, while his beliefs are sincerely held, they are moral beliefs, and therefore secular and not religious.
To answer my question on how U.S. courts would view this issue, it depends on the jurisdiction in which your business is located, and perhaps whether the employeeâs beliefs are grounded in spiritualism or personal morals.
These cases also raise a more fundamental question â how far should businesses go to accommodate employeesâ requests for special treatment. To me, sometimes, the path of least resistance makes the most sense.
For a hospital, there may not be a path of least resistance when comes to public health issues such as vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if itâs a defensible lawsuit.
For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if itâs a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Possibly. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Likely.
In other words, there are more factors to consider other than answering the question, âWhat does the law say about this?â How you incorporate those other factors into your accommodation decision-making is often more important than simply answering the underlying legal question.
Crescent Metal Products in Ohio fired Donald Tschappatt for a variety of instances of poor work performance.
He made “negative comments” about co-workers. He stood around doing nothing and disappeared from his work area. He took extended bathroom breaks. And he made various assembly and packing errors.
After the company fired the 55-year-old Tschappatt, he sued for age discrimination.
The problem with Tschappatt’s claim? Crescent Metal Products replaced him with someone 6 years older. That’s not a great fact for an employee claiming age discrimination.
Tschappatt fails ⌠to show that he was replaced by someone younger. All of the competent and relevant evidence indicates that the company replaced him with Bob Hunter, who was 61.⌠Crescent put in plenty of evidence that Bob Hunter, age 61, replaced Tschappatt. Crescent reassigned Hunter to Tschappattâs position, and Hunter has been “able to successfully reach the same production goals” and “perform all of the duties” of the position “without incident.”
The law protects older workers from discrimination favoring younger workers. An employee cannot establish this if replaced by someone older. Case closed.
Every year I worry about how Iâm going to fill my annual list of worst employers. Iâve yet to be disappointed.
