Legal – Page 17 – Workforce

June 1, 2019June 29, 2023

When Job Applicants Lie: Implementing Policies to Protect Your Company

A recent study revealed that 85 percent of employers have caught applicants lying on their résumés or job applications.

The most common lies involve modifying dates of employment, falsifying credentials, training or degrees, inflating prior earnings, or hiding a criminal history.

Throughout the past several years, there have been several stories of prominent executives and CEOs, across many industries, whose careers were cut short for lying on their job applications or résumés.

What should human resources professionals do when they discover that an employee has lied on their job application or résumé? How can employers avoid liabilities stemming from application falsification? What are the legal consequences for employers?

Preemptive Measures

The first step employers should take to avoid potential pitfalls is to implement a clear and uniform policy about the consequences of providing false information on an application.

For example, a brief disclaimer can be included near the signature line of the employment application, in which the applicant affirms and agrees that providing false, misleading, or incomplete information on an application, in a résumé, or during the interview process is grounds for disqualification from employment or termination if hired. The disclaimer should also expressly waive any liability for the employer if the applicant is not hired or is terminated for providing false information.

More importantly, employers should be consistent in enforcing this policy. Consistency can protect the employer from legal liabilities — and countless headaches — down the road. To accomplish this, employers should document every applicant’s receipt of the policy.

If a background investigation reveals that an applicant or employee clearly lied on his or her application, the applicant should be rejected or the employee terminated immediately. If the employer only suspects a falsification, HR should engage in a fair and impartial investigation and document its findings. Depending on the results, disciplinary action should be taken.

When assessing an applicant’s background, employers should focus on convictions and not arrest records. Otherwise, applicants may be unfairly prejudiced in the hiring process based on unsupported criminal allegations.

Conducting Pre-Employment Background Checks

Recent federal and state laws have presented hiring professionals with new compliance challenges when conducting a background screening. For example, while there are no federal laws requiring home health agencies to conduct criminal background checks or disqualify applicants from employment based on the results, there are 41 states that require these agencies to conduct criminal background checks.

Those requirements in those 41 states vary widely, including when the background check must be completed, what sources of information must be checked, which positions require background checks, and which convictions, if any, result in disqualification from employment.

The benefits of conducting criminal background checks in the hiring process often outweigh these challenges, especially in fields — such as health care or government contracting — where a failure to conduct screenings can result in hefty consequences.

While many employers may prefer to use social media to research an applicant’s background, employers should exercise caution when using an applicant’s protected characteristics (like race, religion, age or gender) as a basis for refusing employment.

Understanding the legal landscape as it relates to information an employer may request of an applicant is also key. For example, some states have laws that prohibit employers from requesting an applicant’s social media username and password. Additionally, some states have legislation referred to as “Ban the Box,” which prohibits employers from asking about criminal history on a job application.

Unforeseen Benefits of a Consistent Policy

In most cases, implementing a strong application falsification policy can result in some unexpected positive benefits. For example, many states have laws prohibiting employers from revoking job offers based on the discovery of a misdemeanor or other types of conviction with no relevance to the applicant’s suitability for the position.

Nonetheless, even though the employer cannot revoke the offer because of the conviction itself, the employee’s misrepresentation about the existence of the conviction is grounds for revocation.

For example, in a Pennsylvania case, the plaintiff only disclosed two convictions — stalking and harassment — on his application. But a background investigation revealed that he had pleaded guilty to eight additional crimes, including public drunkenness, disorderly conduct and drug crimes.

The company revoked his offer. The district court determined that the company did not violate Pennsylvania’s criminal background check statute because the termination was not for the employees’ conviction, but his lie about it. Importantly, the district court relied heavily on the company’s implementation and communication of a consistent policy forbidding applicants from lying on their applications.

In a similar vein, companies faced with discriminatory failure to hire claims have successfully argued that the later discovery of falsified job applications is a complete defense against the claims. In other words, if the company would not have hired the employee had it known of the applicant’s lie, the applicant cannot later claim that he or she was not hired because of a protected characteristic.

Here too, courts look closely at the company’s fair, equitable and consistent enforcement of its application falsification policy to establish that the company’s decision was not motivated by discriminatory intent.

Another benefit of maintaining a strong background check policy is that it can absolve or limit the company of liabilities down the road if the employee is terminated. Oftentimes, in the course of litigation over wrongful termination or discrimination claims, exhaustive background checks into the plaintiff reveal criminal histories previously unknown.

While an employer may still be on the hook for some damages if the decision to terminate was indeed discriminatory, the Supreme Court has held that a reward of back pay can be cut off completely — and the plaintiff’s potential damages significantly limited — if the employee’s wrongdoing was so severe that the company would have terminated the employee in any event if it had been uncovered. As a result, employers can potentially limit their exposure to liability in later wrongful termination claims by consistently enforcing a no-tolerance policy for application falsification.

While not every application falsification results in a high-profile CEO or executive separation, the problem is common across industries. HR professionals should take care to review their company’s job application process with the help of legal counsel to implement a fair and equitable policy that is compliant with state and federal regulations and train interviewers and hiring professionals of what they can and cannot ask.

The fix can be quite easy, and the benefits are great.

May 30, 2019April 26, 2019

Stalker Costs Costco in Bulk

Dawn Suppo was a Costco Wholesale Corp. employee.

A customer approached Suppo and asked her personal questions, including where she lived. A few days later, the same customer asked Suppo more questions. In another instance, Suppo noticed that the customer was in a disguise, and watching her from behind an aisle.

Suppo complained to her supervisors, but to no avail. Suppo also asked for a closer parking spot in the Costco parking lot, which was denied. The customer encountered Suppo at least 20 more times over the next 13 months, in some instances attempting to touch Suppo, bumping his cart into her, and, in one instance, videotaping her. Suppo was forced to obtain a “no contact order” to restrain the customer.

The stalking forced Suppo to take family medical leave to avoid continued encounters with the customer. Eventually, Costco terminated Suppo because her unpaid medical leave had expired. Suppo filed a hostile work environment charge with the EEOC under Title VII. After an investigation, the EEOC filed a lawsuit against Costco on behalf of Suppo.

The case proceeded to a jury trial, and the jury ruled in favor of Suppo. On appeal, the U.S. Court of Appeals for the 7th Circuit held that the harassment Suppo faced was “severe and pervasive” under the law, given the significant amount of stalking that took place.

The court affirmed the jury’s conclusion that there was a basis for employer liability because the employer’s response to Suppo’s predicament was “unreasonably weak.” EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018).

IMPACT: Employers should be aware that a hostile work environment can be created by unreasonable behavior on the part of a company’s customers. In the case of stalking, employers should attempt to provide solutions to employees to avoid the stalking and cooperate with police where necessary.

Also in Legal Briefings: Public Sector Employers and Age Discrimination

May 29, 2019June 29, 2023

Does the Attorney-Client Privilege Protect Harassment Probes Conducted By a Lawyer?

An employee complaints to HR that her supervisor has been sexually harassing her.

The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.

At the conclusion of the investigation, the lawyer recommends that the company suspend, and not fire the harasser. That decision leads to the victim filing suit.

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.

Who wins that fight? Does the court compel you to disclose the report, or does it protect it from disclosure as privileged?

In Barbini v. First Niagara Bank, a federal court recently addressed this very issue. It concluded that the lawyer’s investigatory report is not privileged and ordered its disclosure.

1. Not legal advice. Not all communications between lawyer are client are privileged communications. The attorney-client privilege protects communications that are primarily or predominantly of legal in nature, the interpretation and application of legal principles to guide future conduct or to assess past conduct. It does not, however, protect communications that involve the business or operations of the employer that do not otherwise rely upon the interpretation and application of legal principles. When a lawyer fills the role of an investigator of workplace misconduct, the attorney is filling a business role, not a legal role. Thus, the privilege does not attach to protect the communications. The lawyer is no longer the company’s lawyer, but a fact witness as to what occurred.
  (Sidebar: the lawyer/investigator will also have a conflict of interest precluding him or her from representing the company in the litigation, so don’t retain your litigation counsel to conduct the investigation unless you are prepared to find new litigation counsel for that case.)
2. Waiver. If the employer wants to be able to rely upon the investigation at all as part of its defense to the harassment claim, then it is going to have to waiver any attorney-client privilege that otherwise might attach to and protect the investigation. The employer might need to prove that the promptness and thoroughness of its investigation. It might need to prove the reasonableness of its corrective action. It might be asserting a Faragher/Ellerth affirmative defense, or advice of counsel affirmative defense (as was the case in Barbini). In any of those instances, privilege will have to be waived, and the investigatory report, along with all of its related documents, will have to be produced.

As an employer, you should want to rely on your harassment investigation to prove the reasonableness of your response to the complaint. If you are trying to keep the investigation from the plaintiff-employee, in my mind it only begs the question of what skeletons you are trying to hide.

And, in this case, you are probably better off settling the case than digging in your heels and fighting a privilege fight you shouldn’t really be fighting in the first place.

May 28, 2019June 29, 2023

What Does a Valid Jury Waiver Look Like?

Earlier this year, the Senate took up the Forced Arbitration Injustice Repeal Act.

It would, among other things, prohibit employers from requiring employees, as a condition of employment, to sign agreements submitting employment and civil rights claims to arbitration in lieu of filing in court. According to Vox.com, this legislation has some initial bipartisan support, and has some legit traction to perhaps become law.

I am on record as not being a fan of arbitration for employment disputes. I do not believe they are any less expensive or time consuming that in-court litigation. In stead, I’ve previously argued for tools such as contractually shortened statutes of limitations and jury waivers as tools employers can to limit risk instead of arbitration agreements.

What does a jury waiver look like, and in what circumstances do courts enforce them? A recent Ohio appellate decision provides the answer.

In Kane v. Inpatient Med. Servs., the employer required its employees, as a condition of employment, to sign an employment agreement that contained the following jury trial waiver.

Waiver of Jury trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

In her sex discrimination lawsuit, Kate Kane argued that her discrimination claims should have been tried by a jury because the jury trial waiver did not expressly mention discrimination claims within its umbrella of coverage. The appellate court disagreed.

Undoubtedly, the waiver provision is broad. It encompasses “any litigation directly or indirectly arising out of or relating to this agreement and any of the agreements delivered in connection herewith or the transactions contemplated hereby or thereby.” This Court must conclude that Ms. Kane’s claims alleging discriminatory termination at the very least indirectly arise out of or relate to Ms. Kane’s employment agreement.

She also argued that the jury trial waiver as a whole was invalid, as she did not she did not voluntarily, knowingly and intelligently waive her right to a jury trial. Again, the appellate court disagreed, noting that courts apply the following five factors to determine if a “jury waiver was was entered into knowingly, voluntarily, and intelligently.”

The conspicuousness of the provision of the contract;
The level of sophistication and experience of the parties entering into the contract;
The opportunity to negotiate terms of the contract;
The relative bargaining power of each party; and
Whether the waiving party was represented by counsel.

In this case, the court concluded that the five factors merited the enforcement of the jury waiver.

We note that while the provision appears towards the end of the agreement, the provision is nonetheless conspicuous as it appears in all capital letters while most of the agreement does not. Ms. Kane has not argued she was unaware that the provision was in the agreement. Ms. Kane is a college-educated professional with experience negotiating contracts. In fact, there was evidence that Ms. Kane negotiated a higher salary prior to accepting an offer of employment. There was no evidence presented that would indicate Ms. Kane did not have a meaningful choice with respect to the waiver. And while the record does not indicate whether Ms. Kane was represented by counsel at the time she was offered a job, the employment agreement does contains a clause indicating that Ms. Kane “had the opportunity for th[e] Agreement to be reviewed by counsel[.]” Ms. Kane’s mere assertions that she did not understand she would be waiving her right to a jury trial for these claims is insufficient under the circumstances to demonstrate that the waiver was not entered into voluntarily, knowingly, and intelligently. We cannot say that the waiver is unduly complicated or confusing such that someone of Ms. Kane’s background would not have understood the scope of the right she was waiving.

Thus, if you seek for employees to contractually waiver their right to a jury trial, you should ensure:

The waiver is in writing.
It is clearly and conspicuously delineated within an agreement, such that employee is not likely to miss it upon reading the contract.
It is written in language for which it is reasonable for the employee to understand.
The possibility of negotiation of any terms of the employment agreement is at least a possibility.
If offers the opportunity for the employee to have their own counsel review it before the employee signs.

And, while it’s tempting merely to ape the language used in Kane, you should really have your own employment counsel review a jury waiver before you implement it in your own employment agreements.

I love the Kane case, because it gives employers something to think about other than, “Everyone else loves arbitration agreements, so we do too.” After careful deliberation, you might decide that arbitration agreements are the correct answer for your employees and your business. Before making that decision, however, consider the risks, benefits and alternatives. You might just decide that jury waiver is the right solution.

May 22, 2019June 29, 2023

In Harassment Cases, the Context of Profanities Matters (But Only Sometimes)

Editor’s note: This post contains extremely graphic language.

“Why is everyone suddenly using the C-word?” asks Stan Carey in The Guardian. He blames Game of Thrones (video very NSFW — you’ve been warned).

Assuming Stan’s correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, that’s how.

Consider Reeves v. C.H. Robinson Worldwide, which decided the issue of whether vulgar language to which all employees (male and female) are equally exposed is actionable as sexual harassment.

The court made a clear distinction between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and the granddaddy of them all, cunt (unlawful harassment).

[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as “fucking” would contribute to a hostile work environment. “Fucking” can be used as an intensifying adjective before gender-specific epithets such as “bitch.” In that context, “fucking” is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, “fuck” and “fucking” fall more aptly under the rubric of general vulgarity that Title VII does not regulate. …

[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff. … It is enough to hear co-workers on a daily basis refer to female colleagues as … “cunts,” to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: “and you are a ‘bitch,’ too.” …

“Cunt,” referring to a woman’s vagina, is the essence of a gender-specific slur. …

The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically. It is not fatal to her claim that Reeves’s co-workers never directly called her a “bitch,” a “fucking whore,” or a “cunt.” Reeves claims that the offensive conduct occurred “every single day,” and that the manager “accepted and tolerated that same behavior” over her repeated complaints. If C.H. Robinson tolerated this environment, it may be found to have adopted “the offending conduct and its results,” just as if the employer affirmatively authorized it.

Thus, while general vulgarities are not typically actionable as harassment, severe or pervasive gender-specific words or phrases are actionable even if the words are not specifically directed at one employee, but are merely generally used in the workplace. The aforementioned “c-word” is the perfect example.

The takeaway for employers? Words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and ignore the complaint. And if you do, you’re just being a … .

May 22, 2019June 29, 2023

3 Ways HR Leaders Can Stay Ahead of Changing Immigration Policies

Listen to an intense conversation among people-management professionals these days and there’s a good chance the discussion will include immigration.

Organizations are constantly subject to changing regulations and high-stakes political developments affecting the growing global workforce, making immigration a huge pain point, surpassing even costs as a concern in some quarters.

Global uncertainty, changes in H-1B visa availability and countless other immigration-related factors make worldwide recruiting increasingly complex. At the same time, historically low unemployment, widening skills gaps, an aging workforce and the desire to be more diverse and inclusive to compete effectively in a global economy have increased demand for foreign-born workers.

U.S. Census Bureau data show that about 17 percent of the workforce is foreign-born, and without international migration, nearly 45 percent of the nation’s population would be in shrinking regions, with economic concerns related to population decline.

Without an influx of immigrants, the total U.S. population of working-age adults is expected to decline over the next 20 years. It’s clear that HR professionals need a way to prepare for a changing immigration landscape to recruit the talent they need. Here are three tips on how to be prepared.

Build broad support for a diverse workforce. Organizations pursue diversity and inclusion initiatives for a variety of reasons, including a desire to improve employee morale, a sense of social responsibility, greater internal parity and a drive to appeal to a diverse customer base. In addition to these worthy objectives, a growing body of evidence suggests diversity improves performance and competitive standing.

A Barron’s article published earlier this year cites two studies demonstrating diversity’s value. The studies found gender diversity improves investment performance from 4 to 10 percent—and diverse leadership teams outperformed peers on profitability by 21 percent, and on value creation by 27 percent.

Building broad support for a diverse workforce across the organization is critical, not only for gaining buy-in for corporate diversity and inclusion initiatives, but also to prepare for changes in immigration regulations which make recruiting more expensive and time-consuming. With a strong commitment to diversity, company leaders are more likely to allocate the necessary resources.

Stay current on trends and events by following industry sources. Most HR professionals have enough on their plate already and struggle to find time to research immigration policy proposals and keep close tabs on political developments which may affect employment-based immigration programs. This is especially true for those who manage large, global workforces.

One way to stay up to date without investing an inordinate amount of time in research is to follow a variety of industry sources for immigration policy news. In some cases, sectors adjacent to employment-based immigration might spot trends before HR outlets identify an emerging pattern and alert their readers and followers. Immigration law associations frequently provide a roundup on the status of proposed regulations and court cases impacting employment-based immigration.

Prepare policies and workforce strategy for changes. A Pearl Law Group survey conducted last year found 68 percent of employers felt their strategic talent planning has been impacted by recent immigration changes. That’s unlikely to change as long as immigration remains a polarizing political issue around the world. HR leaders who acknowledge uncertainty is the new normal can be more prepared than their peers who are caught off guard by changing immigration regulations. Engaging in what-if scenarios and preparing for likely contingencies can put forward-thinking companies ahead of competitors in the war for global talent. For example, exploring remote working policies can expand the pool of available employees to include offsite candidates who can be a part of the team without relocating. HR can also work closely with counsel to develop policies to address possible scenarios, such as the judicial extension of the DACA program and changes in H-1B visa administration.

A recent National Foundation for American Policy analysis underscored the scope of the challenge HR professionals face on immigration, reporting on a recent spike in visa denials in the United States. The denial rate for visa extensions rose from 4 percent in 2016 to 18 percent in the first quarter of 2019. Over that same time, rejection rates for visa petitions rose from 10 percent to 32 percent.

These changes are happening against a backdrop of a decrease in the number of visa applicants and independent of specific changes in policies or laws. That emphasizes the need for HR professionals to proactively address employment-based immigration policies.

By building a commitment to a diverse workforce, staying informed on trends, and gaming out possible scenarios and strategies to future-proof policies, HR leaders can stay ahead of the curve in a rapidly changing environment.

Peggy Smith is president and CEO of Worldwide ERC. A frequent keynoter and panelist at mobility and HR-related conferences, Smith shares her thoughts on global workforce issues, talent and skills shortages, multigenerational workplace considerations and future mobility strategy.

May 21, 2019June 29, 2023

You Just Discovered You Hired a Sex Offender. Now What?

A reader sent me the following question.

I worked for a grocery store. Can a child molester be employed by the grocery store? I reported it to the manager, and showed proof and nothing was done about it.

There’s a lot going on here. What does the law require an employer to do (if anything) under these circumstances? And what should an employer do when it discovers it is employing a sex offender?

Legally speaking, it depends on the state in which you are operating. Laws that mandate state sex offender registries are more commonly known as Megan’s Law. All 50 states and the District of Columbia maintain these sex offender registries that are open to the public via websites. As of 2016, there were 859,500 registered sex offenders in United States. Some of these Megan’s Laws expressly prohibit an employer from using the state sex offender registry information for employment purposes (California, for example). Ohio’s Megan’s Law has no such requirement. Because these law do vary from state to state, you should check with your lawyer before refusing to hire, or fire, a registered sex offender.

Separately, the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII prohibits an employer from instituting a blanket rule against the employment of anyone with a criminal history, including sex crimes. Instead, employers must make an individualized assessment of the employee’s fit for the specific job at issue in light of the criminal history, taking into consideration factors such as the facts or circumstances surrounding the offense, the length and consistency of employment history before and after the offense or conduct, rehabilitation efforts, and the essential functions of the job. Thus, the EEOC might take issue with a blanket policy against the employment of sex offenders in all cases.

These legal limits on an employer’s ability to fire a sex offender notwithstanding, I still see liability red flags that should make you very jumpy if you are deciding whether to hire or fire someone with this background. Specifically, what happens if you choose to employ this individual, and he or she commits a sex crime while on-the-clock or otherwise relating to the employment.

First, you should be worried about liability for negligent hiring/retention. An employer has an affirmative duty to protect its employees, customers, and anyone else that comes in contact with the business from risks of harm of which the employer knows or should know. If an employer hires or retains an individual despite knowledge of prior improper behavior (i.e., sex crimes), and the employee then sexually assaults someone, that injured party could argue the employer knew, or should have known, that the employee might hurt someone. You could even face liability for punitive damages for consciously disregarding for the rights and safety of other employees. This could potentially be a very expensive mistake for an employer to learn. And, I’m speaking from experience, having defended an employer in a case with these facts.

Second, I can envision an argument that the employment of a registered sex offender violates OSHA’s General Duty Clause, which requires employers to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” The courts have interpreted OSHA’s general duty clause to impose upon employers a legal obligation to provide a workplace free from conditions that cause, or are likely to cause, death or serious physical harm to employees. It’s not a stretch to imagine the employment of a registered sex offender violating this duty.

Separate from these legal issues that might drive you not to employ a sex offender, there are also workplace issues you’ll have to consider and manage. Since sex offender registries are mostly public, it’s not hard to envision a situation in which (1) an employee’s registration status becomes known in the workplace, and (2) it becomes fodder for gossip, discomfort, and scorn among co-workers. Not surprisingly, employees tend not to react well to news that one of their coworkers is a sex offender. They may demand you take immediate action and fire the sex offender, walk off the job in protest, or bully the sex offender into quitting. Do you want to deal with this level of discontent? Is a registered sex offender the mountain you’re willing to die on?

Thus, to address the question that started this discussion, if I’m an employer and I find out that I’m about to employ, or am employing, a registered sex offender, my decision is a relatively easy one. I’m either not hiring or firing. I’m all for rehabilitation and second chances, but in the case, let it be in someone else’s workplace.

May 16, 2019June 29, 2023

Abortion Discrimination = Pregnancy Discrimination

Thanks to, among other states, Alabama, Georgia, and Ohio, the debate over abortion is raging.

Suppose you are staunchly anti-abortion, and you learn that one of your employees is considering, or has had, an abortion. Can you fire her?

Thus far, three courts have looked at this issue, and all three courts have all reached the same conclusion.

No.

The latest, Ducharme v. Crescent City Déjà Vu, L.L.C. (E.D. La. 5/13/19), concerned an employee fired after requesting two days off to have an abortion. She claimed pregnancy discrimination, and the court held that Title VII’s prohibition against pregnancy discrimination also prohibits abortion discrimination.

The court finds that abortion is encompassed within the statutory text prohibiting adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.” While an abortion is not a medical condition related to pregnancy in the same way as gestational diabetes and lactation, it is a medical procedure that may be used to treat a pregnancy related medical condition. … [A]n abortion is only something that can be undergone during a pregnancy. Title VII requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.” A woman terminated from employment because she had an abortion was terminated because she was affected by pregnancy.

This case aligns with the only two appellate courts to rule on the issue, the 3rd and 6th Circuits, as well as the EEOC’s interpretation of the definition of pregnancy.

Case closed. If you learn that one of your employees is having, or has had, an abortion, do yourself a favor and just let her be. Her choice, for which you cannot punish her. Moreover, unlawful discrimination notwithstanding, I promise you that the decision she is making is painful enough, without you exacerbating her pain by firing her.

For more on this case, head over to the Employer Handbook Blog, where Eric Meyer covered it yesterday.

April 25, 2019June 29, 2023

In Lamps Plus v. Varela, Supreme Court Signs Off on Death by a Thousand Cuts

Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned it in 1905.

It translates variously as the slow process, the lingering death, or slow slicing. It’s more commonly known as “death by a thousand cuts,” in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.

On April 24, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.

Management-side employment lawyers will herald this decision, along with Epic Systems v. Lewis (which held that agreements that compel employees to waive their rights to file or participate in class or collective actions and individually arbitrate their claims are valid under Section 7 of the National Labor Relations Act), as the death knell for wage/hour and other employment law class and collective actions. And, they are probably right. But, is this result a good result for employers?

I’ve previously discussed by distaste for arbitration as a forum for employment disputes. In sum: I do not think it’s the panacea many employers believe it to be; employers should instead consider jury trial waivers to cut the risk of runaway juries, and contractually shortened statutes of limitations to otherwise limit risk.

Also, however, consider whether by preventing employees from litigating claims as class or collective actions you are inflicting lingchi on your business. Yes, class actions are large, and unwieldy, and expensive. But they also offer the opportunity for finality. You will resolve the issue in one lone (albeit large) case. Alternatively, if you require employees to litigate their wage/hour claims (for example) in individual lawsuits, instead of facing one claim, you will expose your business to dozens, or hundreds, or thousands of individual claims, each carrying with it a small amount of damages for unpaid wages, and a large exposure for an attorneys’ fee award in each case. And while attorneys’ fees are the number one risk factor for employers in wage/hour class and collective actions, would you rather expose yourself to one potential award of fees, or dozens, hundreds, or thousands? And, don’t forget about arbitration fees, which, often times, employers are contractually obligated to pay in full.

So, before you jump on the class-action waiver bandwagon, talk to your employment lawyer and consider whether it’s really in the best interest of your business. Do you want one larger cut, or thousands of smaller ones?

April 23, 2019June 29, 2023

Does Title VII Protect Heterosexuals From Discrimination?

So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst

Suppose you own a company, and one of your employees posts this rant on her personal Facebook page.

Further suppose that in addition to owning the company, you are also a lesbian and take offense to the employee’s views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O’Daniel v. Industrial Service Solutions, the 5th Circuit said no.

The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The court held that under its own precedent, O’Daniel could not move forward on her claim.

O’Daniel claims in essence that she was retaliated against because she “opposed” discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover “sexual orientation.” … Because the law in this circuit is clear, we cannot accept O’Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the “trend” has upended them.

Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee’s complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: “Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits.”

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to “sex” discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Second, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: “Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity.”

If the employee ranted against interracial marriage, and the company’s African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee’s right to express bigoted views on her personal Facebook page or otherwise.