Jottings By An Employer's Lawyer

Wednesday, April 26, 2006

Mr. Employer - You Should Have Protected Me

From your employee. That's the chilling story in The Perils of Management: When the Right Moves Go Wrong, relayed in Workers Comp Insider, which as here, often has great workplace information and insights beyond the boundries implied by its title.

The set up is great:
You have a valued employee - a good producer - with a drinking problem. Ever since a traumatic divorce, his performance has suffered. He misses a meeting with a major client. You encourage him to seek help through the Employee Assistance Program. He voluntarily enters a detoxification program. He participates in Alcoholics Anonymous twice a week. He sees a counselor.
Yet his performance continues to erode. You suspect he may be drinking again. You call him into your office. He seems a bit spacy - might be taking a decongestant for a cold. You don't smell any alcohol, but you ask him if he had been drinking. He looks at you unflinchingly and says no. You give him yet another stern warning that unless his performance improves immediately, you will have to terminate him.
You're trying to be a good manager. You really want to help this guy, a valued employee. But how far do you go? When do you draw the line? You shake your head as he walks out of your office.
No manager can read that without having the queasy feeling that could be me (maybe even thinking, "I hope I would handle it that well.") What follows are a fatal crash, with the employee who left the office 3 hours earlier testing out at .40 blood alcohol level, and a lawsuit by the survivors of the family killed in that crash in which the employer is now a defendant.

Although I don't necessarily agree that it is certain there will be a large settlement -- the law does still have some limits on an employer's responsibility for its employees' off duty conduct -- there is no question that in a society where someone must pay for a wrong, those limits are continually being pushed.

Here the allegation is that an employer's knowledge of an employee's drinking was the problem; a few months back, a New Jersey court refused to dismiss a case where the mother of a molested child sued her husband's employer claiming that if the company had policed his computer viewing habits and turned him into the authorities for viewing sites with child pornography he would not have photographed her daughter (his stepdaughter) and submitted her pictures to those sites. See Employers Have Duty To Investigate Worker’s Online Pornography Viewing [pdf]. A dozen years ago, the Texas Supreme Court spared employers the agony of being the relationship police by holding that an employer was not responsible to the injured spouses of two of its employees who had engaged in a consensual sexual relationship, Helena Laboratories Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994) (per curiam), but it had to reverse an intermediate court of appeals that thought that was a proper role.

The basic concept -- negligence on the part of the employer in selecting or retaining an employee -- has a long history in American common law, but extending that responsibility to conduct not related to work is a dangerous precedent. The more extenuated the connection to the workplace the worst policy it becomes.

Carried too far, it could at some point completely shift the risk of harm to third parties for all but the unemployed. If you doubt that, consider this simple syllogism --

all humans are flawed and capable, through intent or negligence, of harming others;

all employees are human;
therefore all employees are capable of harming others.
Sometimes, if the suit against the employer discussed in the opening paragraphs succeeds, legally speaking, even when doing right.

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Tuesday, April 25, 2006

Anti-Muslim Email, 1st Amendment Issue?-- Or A Bigger Problem?

In the latest flareup over the now old news, but apparently not forgotten, controversial cartoons published by a Danish newspaper, the headline in the Detroit Free Press, MSU prof's e-mail outrages Muslims, sets the stage. Mechanical Engineering professor Indrek Wichman, sent an email to a Muslim student group while it hosted a public awareness event about controversial cartoons that depicted Islam's founder as a terrorist.

According to the story [among other things] Professor Wichman wrote:
I am offended not by cartoons, but by more mundane things like beheadings of civilians, cowardly attacks on public buildings, suicide murders.
He went on to say: "I counsul [sic] you dissatisfied, agressive [sic], brutal, and uncivilized slave-trading Moslems to be very aware of this as you proceed with your infantile 'protests.'
Professor Wichman does not appear to be a shrinking violet, given his views on teaching set out on his faculty page on the University website:
Good teaching involves rigor, precision and intellectual honesty, and the unrelenting application of consistently high standards analogous (but not identical) to the ideals of athletic contests. ... Higher education, like high-level athletics, or high-level anything, is not for everyone. Thus, education is also an elitist enterprise. This is hard to defend in an egalitarian and pluralistic society, but the principles of absolute democracy ("...we are all equals here...") can no better be expected to hold sway in a classroom than in a football locker room at halftime, or a boxing ring between rounds. ... Failing students in my classes causes me no "moral dilemma" and is something I can do without compunction ...
The University has disagreed with the sentiment contained in his email, warned Wichman to be careful not to go further, but basically viewed it as a private communication protected by the 1st Amendment.

No comment on the University's view of the image of higher education at Michigan State his email sends to those who value spelling, made even more ironic when read in light of the Professor's own dedication to precision and unrelenting application of consistently high standards.

A hat tip to my colleague Rose Jennings for alerting me to the story which has the full text of Professor Wichman's email.

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Monday, April 24, 2006

In Trouble for Reading This? - Here's An Argument

It's just like reading the newspaper, or at least that's the argument that worked for a New York City employee who was canned for surfing the web during working hours. The AP story, Judge Ok's Personal Internet Use, has some details. But the money quote from the Administrative Law Judge John Spooner was this:
The Internet has become the modern equivalent of a telephone or a daily newspaper. He noted that city agencies permit workers to use a telephone for personal calls, so long as this does not interfere with their overall work performance." Spooner ruled after a search of Choudhri's computer files revealed he had visited several news and travel sites.
The result, the most minor form of discipline -- a reprimand. A decision his lawyer called, understandably, "very reasonable."

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Friday, April 21, 2006

Confess, Then Sue - Employee Gets $7.5 MDV

While my headline correctly sets out the facts, it is a little more complicated than that as the San Diego Tribune website story, Wrongly accused in theft, worker awarded millions, points out. Unlike many trial reports -- this one has a lot of details, although it does sound as if it were written with input from the employee's side of the story, not the employer (understandable given the outcome).

Joaquin Robles, an AutoZone employee of just under a year was called into the back office and accused of stealing $840 that was missing from a bank deposit. After being interrogated for 2 hours and 40 minutes he confessed. The details of that session:
Jara, the [the regional loss prevention manager], had a black bag on the floor from which he pulled a video camera and a couple of VHS tapes, Robles said. It was evidence against Robles, Jara said. When Robles asked to watch the tapes, Jara refused. And he wouldn't let Robles leave the room, Robles said.
Jara, who is still employed by AutoZone, told Robles he would have him arrested and that he'd spend two or three years in jail. If Robles confessed, however, he would keep his job and be allowed to pay back the money from his paychecks. Robles said he was held in the manager's office for two hours and 40 minutes, and, figuring he had no other option, he confessed.
Robles was suspended. When he returned to work he was fired and the $840 was taken from his last paycheck. According to Robles' lawyer the store manager said she received a voice mail from a bank teller two weeks after Robles confessed that the same amount of money had been found.

Apparently the key to the jury's apparent anger was the company's loss prevention manual which gave detailed steps to how to handle such cases. Among the items reported in the story to be in the manual were:
  • the interview setting can psychologically aid an investigator;
  • props such as bulging files, snapshots and videos add credibility to an interview and should be placed in plain view;
  • interrogators main interviewing tactic: RPM, which stands for “rationalize why, project blame and minimize the offense.”

This was the second trial of this case, as both sides had appealed after an earlier trial in which the company had escaped liability and the jury found that the individual manager should pay $73,150 in compensatory damages and $5,000 (a stipulated amount) in punitive damages.

AutoZone will certainly appeal and Robles seems to understand my procedure professor Pappy Jones' admonition that "there is no cash register at the back of the courtroom." When asked what he would do with the jury award he answered that "unless I have it in my hands, I don't want to make plans." What is sure to make AutoZone cringe in hindsight is how he concluded the statement, “I only wanted my last paycheck.”

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Thursday, April 20, 2006

Requiring Rooming on the Road - A Caution From Your Lawyer

Today's article in the NYT, My Colleague, My Roommate, notes that corporate America is beginning to borrow a concept from the non-profit and academic world -- having its employees share hotel rooms while on the road. A cost-saving measure that you can imagine, for the most part, is being met with less than enthusiasm.

While I don't normally post allegations from lawsuits -- as a service to anyone needing ammunition to oppose such a forced rooming request, let me offer as Exhibit A, the summary of a lawsuit filed just this past week in Austin, Texas:
Sexual harassment, retaliation, invasion of privacy and intentional infliction of emotional distress case seeking exemplary damages in which plaintiff worked for defendant [Company] as a technician and had to share a room with another employee, defendant [Doe] on a work related trip. [Doe] "masterbated [sic] in front of plaintiff " and plaintiff was terminated after he reported the behavior.
From D-1-GN-06-001277, filed in Travis County District Court on April 12, 2006, thanks to the always terrific reporters from the Courthouse News Service.

I rest my case.

So what can you do when your employer is making employees share hotel BEDS? My employer is making seven women share two hotel rooms (two beds per room). The owners are married and get their own room while the only male on the trip gets his own room, also.
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Monday, April 17, 2006

Most Important Argument for Employers in Supreme Court's Term Held Today

That would be in the case tailored to allow the Court to give guidance to the divided appeals courts on what exactly constitutes an adverse employment action for purposes of retaliation statutes. See my earlier report on White v. Burlington Northern here.

Basically, Ms. White a forklift operator complained of sexual harassment. Later she was moved to another position, in the same job classification, but one that required more physical labor. She also was suspended without pay for 37 days for insubordination, although the suspension was later changed to a paid suspension.

Although certainly oral questions are not a decisive clue to how the opinion will turn out, the early reports don't do a lot to relieve concerns among employer groups. Among the questions and answers being quoted in various reports are the following:

Justice Scalia
He is concerned jurors could find in favor of workers and award damages for "every little thing." What, he asked, would stop a jury from awarding damages if an angry supervisor stopped saying "Good Morning" or taking to lunch an employee who alleged discrimination. When White's counsel suggested that the Court should not be too precise because "retaliation is as varied as the human imagination," Justice Scalia replied, "I worry about that. Jurors can have wonderful imaginations."

He also expressed concerns about giving a wide variance for juries, "You say every claim is going to be a jury trial. I mean, come on.'' At the same time, Scalia questioned the railroad's contention that federal law allows retaliation claims only when an employer's action would be enough to warrant a discrimination suit. He also said a suspension without pay "would be a real hardship'' for some people, even if the company later reinstates the worker and reinstates the worker and provides back pay.

Justice Souter on the differences in the two jobs

"Isn't there a difference between sitting on a forklift and picking up steel rails with your bare hands?''
Justice Ginsburg shared some of the concerns of Justice Scalia:
"She understandably experienced much strain in that time. She worried about how she would be able to feed her children.''
Chief Justice Roberts on how the jobs were the same classification

"If the jobs really were that different, the union would have categorized them as different."

Justice Alito

Asked several questions that indicated skepticism of Burlington Northern's arguments. He said Congress might not have wanted workers to ``suffer at all'' after complaining of discrimination.

Some of the early reports can be found here, the AP story, and BusinessWeek.

One possibility that would allow Ms. White to maintain her $43,000 jury award but still allow courts to maintain a close reign would be to find that the lengthy unpaid suspension, even if reversed is actionable, but a job transfer without a loss of pay would not be.

Although the Roberts' court seems to be returning decisions faster than we have become accustomed to, given the potential ramifications of this decision and the many different ways this could be sliced, plus the rush of other term end decisions, I would not be surprised if this is one to one of the last decisions of this term.

UPDATE: Nina Totenberg, NPR's Supreme Court Reporter has even more quotes here.


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9th Circuit Upholds Makeup Rule

So much for my predictions. In a well watched case, arising from the termination of a female bartender who refused to comply with the company's image program by wearing makeup, the 9th Circuit has now twice upheld the termination. Although I was correct that the initial panel decision in Jespersen v. Harrah's would be reviewed en banc, I was wrong in predicting that it would be overturned.

Friday, the 9th Circuit surprised me (and I assume quite a few others who tend to always assume that court will take the most liberal position possible) with its holding basically affirming the rationale of the panel. Jespersen v. Harrah's Operating Company, Inc. (9th Cir. en banc 4/14/06) [pdf]. Now is probably an appropriate time to change my third prediction that this would ultimately merit Supreme Court review. While certiorari may be filed, I would be surprised if it were granted.

The en banc court, took on the same two issues addresssed by the panel. First, with respect to its line of cases that grooming codes can are discriminatory if they are unequally burdensome on men and women, the Court reaffirmed that line, but found this record did not establish such a difference.

With respect to gender stereotyping, the Court was also careful not to cut off future claims, saying it is possible that there could be a grooming code that would fall because of gender stereotyping, but again not on the record of this case.

The Court tried to provide some guidance by noting this was not a grooming code that was intent on portraying women as sexual objects, nor one that led to an employee being harassed because of their failure to comply with a gender stereotype. But erhaps what was most persuasive to the Court was what might happen if it reversed the summary judgment for the employer:

We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self image, can create a triable issue of sex discrimination.

It seems the possibility of a world without grooming codes was just too much for at least 7 of the 11 judges assigned the case.

The decision had two dissents, including an eloquent one by Judge Kozinski, which among other arguments would find requiring makeup of women only is in fact a classic sexual stereotype:

Women’s faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on—and presumably enjoy wearing —cosmetics. But cultural norms change; not so long ago a man wearing an earring was a gypsy, a pirate or an oddity. Today, a man wearing body piercing jewelry is hardly noticed. So, too, a large (and perhaps growing) number of women choose to present themselves to the world without makeup. I see no justification for forcing them to conform to Harrah’s quaint notion of what a “real woman” looks like.

This is a narrowly written case, designed not to hem the court in for future cases. But for Jespersen, she has now had her best shot.

For more on the decision, check out Ross Runkel's analysis, Gender-based grooming code survives Title VII attack. He starts provocatively, "The decision leaves me wondering whether that court ever reads the statute," and concludes even more emphatically, "The grooming code fit the court's own sex stereotypes exactly.


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Wednesday, April 12, 2006

Sex v. Sexual Reproduction and the ADA - A View from the Midwest

Although inching closer to the line, the 7th Circuit does not yet agree with the 9th Circuit that the ability to engage in sex, as opposed to the ability to engage in sex for the purposes of sexual reproduction, is a major life activity. Scheerer v. Potter (7th Cir. 4/10/06) [pdf]. That's just one nugget from the case in which the postmaster in a one person station was not able to convince either the district or appellate court that his diabetes rendered him disabled under the Rehab Act (or by analogy, the ADA).

With respect to the distinction between sex and sexual reproduction, the Court noted:
Scheerer’s evidence pertaining to a substantial limitation in sexual reproduction is insufficient. Scheerer complains of reduced sexual drive and difficulty in obtaining erections; he must rely on injections to sustain an erection. His complaint is limited reduced sexual activity, untethered to impairments in sexual reproduction. This alone may be fatal to his claim because this court has not recognized lowered sexual drive or impotence as the types of disruptions than can amount to a disability under the ADA or the Rehabilitation Act.
Two quick thoughts -- one other place the distinction between sex and sex for purposes of reproduction is made (with advance apologies for perhaps not getting the theological niceties down) is the Catholic church's rationale for the ban on birth control. Secondly, it still doesn't answer the question posed by the dissent in the 9th Circuit's recognition of engaging in sexual relations as a major life activity:
I fail to see any causal connection whatsoever with McAlindin's alleged sexual disfunction and the job he wants, the job he has, or the adverse employment actions he alleges he suffered. Is the employer supposed to accommodate his impotence?
Judge Trott, concurring in part and dissenting in part in McAlindin v. County of San Diego, No. 97-56787 (9th Cir. 1999).

And a last thought, it is hard to read the facts of this case and not be sympathetic with the plaintiff, as in fact the Court clearly was; but also not be sympathetic with the courts (in a very different way) for being handed a law with a notable and worthwhile purpose, but very difficult to make work in the real world to protect those in the need of protection without swamping the courts with claims that are not truly what most believe the statute was designed to do. By clamping down hard at the initial stage -- the definition of disability -- the courts have to date kept the statute in check, albeit at a cost to those it was designed to protect, and probably also to the development of the law under the ADA.

I am not sure that approach will hold forever. It would be nice if there were an opportunity for some common sense revision of the statute, but since that would inveitably be seen as a "takeaway" -- that will not happen. In the meantime we will limp along.


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Thursday, April 06, 2006

Unable to Return in 12 Weeks? The Impact Under the FMLA

The answer -- of course -- it depends. First, under which theory the suit is brought -- interference/entitlement or retaliation/discrimination. After sorting that out, it could make a difference when the medical evidence demonstrating the employee could not return at the end of 12 weeks was obtained.

This heady discussion of FMLA principles arose when there was a dispute over the due date that an employee was to return the medical certification entitling her to an FMLA leave. On the day that the company argued it was due, it mailed a letter of termination. Before receiving the letter, the employee turned in the certification on the day she believed it to be due, three days later.

That factual dispute precluded summary judgment for the employer on the ground that she failed to timely return the medical certification. However, the undisputed medical evidence showed that the employee was unable to return to work until fifteen months after her twelve weeks of FMLA leave would have ended. The district court granted summary judgment for the employer on that ground.

The Court had partially addressed this issue earlier, holding in Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir. 1998), that an employee who is not able to return to work after 12 weeks has no valid FMLA claim.

Although today's case was ultimately determined to have been brought only under the entitlement/interference theory, the Court also addressed how this fact pattern would play out under the retaliation/discrimination theory, and the potential difference of the impact of the timing of the medical evidence, particularly in light of the after acquired evidence doctrine of McKennon v. Nashville Banner Publishing Co.

That consideration led to a neat (if rather complex) summary of the law, which I would paraphrase as follows:
  1. in entitlement cases, if an employee can not return to work at the end of 12 weeks, an employer is not liable regardless of whether the medical evidence revealing the employee’s inability to return to work is available before or after the termination decision;
  2. in retaliation cases where the medical information is known prior to the termination decision, that would be a legitimate, nondiscriminatory reason for discharging the employee, and
  3. in retaliation cases where the employer learns of the employee’s inability to return to work only after the termination decision, employer will not have a defense to liability, but might be able to limit the damages.

Edgar v. JAC Products, Inc. (6th Cir. 4/6/06) [pdf].

Although all three holdings might be dicta since they extend beyond the facts of the case, a 6th Circuit practitioner ignores them at their peril. If nothing else, they provide a clear road map of the Court's thinking.

And if that were not enough, the Court also had to address plaintiff's contention that she had been unable to return because the termination had exacerbated her condition, arguably precluding her return in a timely fashion. The Court rejected that theory under the FMLA on two grounds: the FMLA regulation on return focuses on whether the physical or mental condition prevents the employee from returning, not on the cause of the condition; and, such a theory would be bad policy:

Because the stress inherent in adverse employment decisions will tend to aggravate most forms of mental or emotional instability, an argument that summary judgment is precluded by factual disputes as to whether the actions of the employer worsened the employee’s mental state and prevented the employee from resuming his or her position could become standard fare.

Nothing about this opinion does anything to change my belief that the swell of FMLA litigation that has until the last year or so been under the radar screen now, and from this point is taking its place in the pantheon of employment litigation. In fact until many of the nuances of a quite complex statute, such as those reflected in this opinion, are definitively decided, it may be a dominant type of employment litigation.


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Wednesday, April 05, 2006

Immigration - A Summary of the Problem for Business

If you want a quick read on why business is squirming over this issue, check out BusinessWeek's story, Immigration Reform: Why Business Could Get Burned. In a nutshell the Republican party is splitting into two factions on this issue. If you want a hint of how big a split, listen to the rhetoric from the "immigration is a security problem" branch:
The conservative movement can either be the voice of principle or it can be the voice of the Chamber of Commerce. But it cannot be both.
Representative Tom Tancredo (R. Colo) getting a standing ovation at the Conservative Action Political Conference in February.

Legislation already passed by the House could result in a 12 billion (that's billion with a b) compliance problem according to Angelo I. Amador, the U.S. Chamber of Commerce's immigration policy director.

This is one time where as bad as the status quo may be, it may be far better than any solution this Congress can produce.

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Tuesday, April 04, 2006

The Words of the Gospel Set to Messiah or to 3 Blind Mice?

Does that pose a question of religious doctrine? Close enough to cause Judge Posner to invoke the ministerial exception thus precluding an age discrimination suit brought by the organist of the Peoria Diocese. If you represent a religious organization and want a handy history of the ministerial exception, including a historical sojourn through such ecclesiastical courts as the Court of Peculiars and the Court of Arches, put a copy of Tomic v. The Catholic Diocese of Peoria, (7th Cir. 4/6/06) [pdf] in your satchel.

Ultimately, the question was the role of the organist, or more precisely what would the Court's role be in juding the duties of the organist:
So far as his role as organist is concerned, his lawyer says that all Tomic did was play music. But there is no one way to play music. If Tomic played the organ with a rock and roll beat, or played excerpts from Jesus Christ Superstar, at an Easter Mass he would be altering the religious experience of the parishioners. Among his duties as music director was that of selecting the music to be played at the various masses. That duty required him to make a discretionary religious judgment because the Catholic Church does not have rules specifying what piece of music is to be played at each type of mass.
Ultimately there was no question that Tomic "performed tasks that were 'traditionally ecclesiastical or religious,' " which doomed his suit.

In addition, Judge Posner tossed down his (and thus the 7th Circuit's) disagreement with a sister circuit, the 2nd, which in Hankins v. Lyght, 438 F.3d 163 (2d Cir. 2006) held that the Religious Freedom Restoration Act had amended the ADEA to wipe out the ministerial exception and replace it with the RFRA test - whether a particular law imposes a substantial burden on religious activity. Without mincing words, Judge Posner writes:
The decision would if sound invalidate the many decisions in this and other circuits recognizing the ministerial exception to federal employment discrimination law. The decision is unsound. (emphasis added)
Not much question which court Judge Posner believed was singing to the tune of 3 blind mice.

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Sunday, April 02, 2006

Transsexuality - A Third Way

One area that I have been following recently for a speech I have given and will be giving, The Changing Face of Discrimination Law, covers the recent cases focusing on gender stereotyping and the 6th Circuit's rather startling break with the traditional view that transsexuals are not protected under Title VII. Based on language from Price Waterhouse, their decisions have an appealing logic but do seem to stretch the wording not only further intended, but perhaps to a breaking point.

That is the view of District Judge James Robertson of the District of Columbia, who now argues for a different model to deal with such cases -- simply to treat those discriminated against because of dysphoria as being discriminated against because of their sex. Schroer v. Billington, (D. D.C. 3/31/06) [pdf]. That view would require rejection of the long standing precedent of the 7th Circuit, Ulane v. E. Airlines, the case generally cited for the traditional view of non-coverage.

A hat tip to Professor Paul Secunda and his report, Transexual Can Sue for Sex Discrimination Under Title VII. Like the Professor, this is an area I will be following.

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