Employment Laws

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Last week a California Appeals court ruled that a decision not to renew an expiring employment contract cannot form the basis of a wrongful termination case. Nicollette Sheridan, former co-star of the one-time hit television drama “Desperate Housewives,” lost her wrongful termination claim against the show, the network, and its creators when the court ruled that she was not “fired, discharged or terminated.” Instead, the network exercised its option not to renew her employment contract.

You are the HR manager and have just received an FMLA leave request from an employee.  At almost exactly the same time, the employee’s supervisor comes to you wanting to terminate the employee because of performance issues.  You know that FMLA leave does not prohibit an employer from taking action based on an unrelated, legitimate business reason, so you review the supervisor’s information (which supports termination) and sign off on the decision.

Of course, the employee then sues the company for violating the FMLA, claiming the termination was retaliation for her leave request.  Later, you learn that the supervisor’s information that justified termination was not true or not supported by the facts.  You (and others) were duped by the supervisor to permit the termination!  It may be cold comfort for the company that, at least, this isn’t a willful violation of the FMLA, rendering the company liable for double damages, also known as liquidated damages.

Or is it?

Wage and hour lawsuits are difficult for many reasons – not the least of which is because the Fair Labor Standards Act (“FLSA”)  is different than most other employment laws.  For instance, the FLSA puts the burden on employers – not the employee – to prove important aspects of a violation.  Specifically, the FLSA puts the burden on employers to prove that employees are correctly classified as “exempt” from the FLSA’s overtime standards.  Likewise, if an employee is found to have been misclassified, then employers also have the burden to show how many overtime hours the employee really worked (if the employer disputes the employee’s calculation of overtime hours demanded).  

The National Labor Relations Board is taking an increasingly hard look at the language in employer handbooks, as shown by two recent cases from the NLRB’s Arizona Region.  Recently, Hyatt Hotels Corporation agreed to settle an unfair labor practice charge that claimed a provision in the company’s employee handbook acknowledgment form was too broad.  The provision stated that Hyatt’s at-will employment policy could not be changed except by a written agreement signed by the employee and particular executives.  Similarly, earlier this year an administrative law judge decided that a disclaimer in the handbook of an American Red Cross unit stating that the at-will employment relationship “cannot be amended, modified or altered in any way,” could be interpreted to interfere with employees’ rights to engage in group activity to try to change the policy.

So, why the sudden attention by the NLRB to employee handbook policies on employment “at-will”? 

HR professionals generally want to give wayward employees opportunities to do better. So, situations commonly arise where an employee who consistently violates work rules and demonstrates less than professional behavior is given multiple chances to improve. Inevitably, most of the time such an employee fails to fully improve and the time comes to let the employee go. And just as inevitably, when he is terminated the employee contends that he should not have been terminated and 1) seeks unemployment compensation, 2) files an EEOC charge, and/or 3) sues for discrimination, harassment, retaliation, and whatever else he can conjure up. Suddenly all of your good intentions are thrown back in your face, leaving you wishing you would have just fired the employee without giving him all those additional chances to try to improve.

In a recent case out of New Jersey, the employer learned a very tough lesson on the pitfalls of second chances.

The number of retaliation claims filed with the EEOC has been steadily rising.  Is there more retaliation in the working world?  More likely some of the rise is due to better knowledge of various employment laws’ anti-retaliation provisions and greater enforcement of those provisions, including more lawyers bringing retaliation claims that end in sizable verdicts.

I spent a day earlier this week representing a client in an EEOC on-site investigation.  The investigator interviewed numerous company officials.  At the start of each interview, the investigator stated that the EEOC is a “neutral third-party.”

While the EEOC is supposed to be neutral, many actions and positions taken by the EEOC leave companies (and their counsel) shaking their heads over this assertion of neutrality.  While the particular investigator I dealt with this week was quite professional, personable and reasonable, most other experiences with the EEOC make it hard for her and her peers to be viewed as neutral by any employer.

For instance, just this week the EEOC tweeted the following:

Over a year ago, our colleagues at the Information Intersection blog warned that employers should think twice before using websites such as Spokeo.com, which are aggregators of personal information collected from online sources, including social media.  They warned that:

…the information available through some of these sites might be incomplete, inaccurate or dated…The reality is that most online information brokers, in their current versions, are not designed to be used for employment screening purposes.  They typically do not meet or even purport to meet the strict rules that apply to pre-employment screening databases.

A New York federal court recently dismissed a lawsuit filed by Cuttino Mobley  against the New York Knicks.  Mobley, a ten-year veteran of the NBA, claimed that the Knicks discriminated against him because he suffers from hypertrophic cardiomyopathy, a potentially-fatal condition which causes thickening of the wall of the heart.

Mobley argued that the Knicks unlawfully released him after learning about his heart condition.  According to Mobley, he could safely perform the essential functions of his job as a basketball player, and to him this was proven because he had done so for the past ten years (while he was apparently already afflicted with the heart condition ).  However, the Knicks sent Mobley to see two cardiologists, and both doctors determined that it was not safe for Mobley to play basketball with his heart condition.  To the Knicks, this meant he was not qualified to perform the essential functions of his job.

Over the last two years, the amendments to the Americans with Disabilities Act (ADA) have been a prominent and well-discussed topic of employment law. The changes are substantial and significant, as you surely have recognized. But, the changes have also likely left many of you (and supervisors and managers you work with) concerned and confused about how to interact with disabled employees without offending or upsetting them.