Our very own HR Law Matters contributor Jim McCabe has written an insightful analysis on whether employers can prohibit employees from secretly recording conversations in the workplace. The article was published yesterday on Law 360 and can be viewed here.
Termination
An Employee Does Not Get “One Free Mooning”
By Evan Pontz on
Does any employee believe that interrupting a meeting of company executives and mooning them would not get you fired? Well, we found one who does, and he even went to court over his belief. His story is a good reminder about handling awful behavior and terminating employees the right way.
As reported yesterday, Jason Selch worked for an asset management company that, through some mergers, became a subsidiary of Bank of America. He was upset with his proposed compensation after the merger. He got even angrier when a co-worker he liked was fired after refusing to accept a lower compensation plan. So, Selch decided to protest in his own, special way — he burst into a meeting of executives and, after confirming he was not subject to a non-compete, he mooned the executives and left.
Fired for Being Too Fat? The ADA May Make That Illegal
As my colleague considered several months ago, organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to counter the prejudices many have against obese individuals. As part of its efforts, NAAFA is working to establish federal and state laws making obesity a protected class. To date, however, these efforts have only resulted in one state (Michigan) and a handful of cities passing laws making weight-based discrimination illegal.
While efforts to make obesity a protected class have not been especially successful, there has, however, been more movement towards the greater recognition of obesity as a disability under the Americans with Disabilities Act (ADA). My colleague previously noted that a federal district court in Louisiana had found that an employee who weighed 527 pounds at the time of her termination was “an individual with a disability” as defined under the ADA.
Even Where Retaliation Might Be Lawful, It Is Still Unwise
Can you terminate an employee for participating in an internal investigation at your company that is not connected with a formal EEOC proceeding?
Recently, in Townsend v. Benjamin Enterprises, Inc., the Second Circuit joined five other federal appellate courts in answering this question with a “yes.” The Court held that participation in an internal employer investigation not connected with a formal EEOC proceeding is not protected activity under the participation clause contained in Title VII. So, an employee participating in an internal investigation is not protected from being terminated in retaliation for such participation. However, even if such a termination is not unlawful, it is still not a wise or productive decision for any company.