A commercial truck driver’s week-old release from alcoholism treatment meant he had a “current” diagnosis of alcoholism. Jarvela v. Crete Carrier Corp., No. 13-11601 (11th Cir. Jan. 28, 2015). The employer required its drivers to pass DOT standards, including that they have “no current clinical diagnosis of alcoholism.” This driver took FMLA for alcoholism treatment, but when he returned to work, the employer found he had a current diagnosis and fired him. He sued under the ADA and FMLA. The Court agreed he could not meet the job qualifications. The driver’s rehab discharge was dated only one week earlier and it noted the driver suffered from chronic alcohol dependence. Witnesses involved in his treatment testified that “chronic” means “forever” and “an alcoholic is an alcoholic for life.” The court refused to decide how much time must pass before a diagnosis of alcoholism is no longer “current,” but a seven-day-old diagnosis is clearly current.
By Doug Towns and Lori Wright Keffer
Can an employee’s Facebook post be grounds for termination? The Fifth Circuit says, “Yes.” Graziosi v. City of Greenville Mississippi, No. 13-60900 (5th Cir. January 9, 2015). A police officer posted on her Facebook page and on the Mayor’s Facebook page criticizing the Police Chief for not sending a police representative to the funeral of an officer killed in the line of duty. After investigation, the City discharged the officer for, among other reasons, insubordination. The officer sued alleging retaliation for exercising her First Amendment rights.
The Fifth Circuit concluded the officer’s Facebook post was not a citizen commenting on a matter of public concern, but rather a personal “rant;” and, even if the officer had posted as a citizen on a matter of public concern, the City’s employer-interests in discipline and working relationships outweighed the officer’s interest. The City did not have to prove actual disruption to its operations. Instead, the City was entitled to take action to “prevent future disruption.”
While this case involves a public employer, it is relevant to private employers. The case might show how far a court will go to protect an employee’s privacy interests when weighed against an employer’s business interest.
See also our earlier post on a similar issue in Lane v. Franks et al., No. 13-483 (U.S. June 19, 2014).
By Bill Wright
When you file SEC reports, do you report litigation risks? Do you name employees involved? An employer is headed to trial over whether it retaliated against a former employee by stating her name in SEC filings as the Charging Party responsible for a large EEOC investigation and conciliation. The employer didn’t use to name names, then it started naming names, then it stopped again – creating evidence of pretext. Also, the general counsel wrote management and “evinc[ed] disdain for the EEOC process” and “animus against” the former employee. Greengrass v. International Monetary Systems Ltd, No 13-2901 (7th Cir. January 12, 2015) (Don’t ask me why the GC’s email was disclosed.)
Apparently litigation reports in SEC filings should be consistent in the practice of either naming names or using code names to avoid identifying the employees involved.
On January 5, 2015, the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace (CDW), the National Association of Manufacturers, the National Retail Federation, and the Society for Human Resource Management jointly filed a federal lawsuit to strike down the National Labor Relations Board’s re-issued “ambush” Election Rule. (NLRB Modernizes Procedures) The Chamber and CDW successfully challenged the 2011 version of the Rule, arguing that the NLRB lacked a quorum at that time. The new law suit attacks the substance of the Rule. The groups contend, among other things, that the virtual elimination of the pre-election hearing violates the National Labor Relations Act and deprives employers of Constitutional due process. They also argue that the Rule eliminates employer speech, protected by the Act, and that the issuance of the Rule is “arbitrary and capricious,” in violation of the Administrative Procedure Act. The suit requests that the Court enjoin the NLRB from implementing the Rule. Currently, the Rule is scheduled to go into effect on April 14th.