Lethal Danger Needed to Invoke Wrongful Discharge Claim 2019-12-03T12:09:22-07:00

Posted on December 3, 2019

Zero tolerance against workplace violence is a laudable policy. So too is encouraging employees to withdraw to safety when encountering workplace violence. Thus, when two employees get into a fight, a rational response (and one consistent with these policies) may be to fire both employees. There is an ongoing debate in courts across the country, however, whether an employer may fire an employee for defending himself against serious bodily harm because self-defense is a legally protected right.

The West Virginia Supreme Court recently clarified that self-defense supporting a wrongful discharge claim must be in response to “lethal imminent danger,” not just any physical attack. The court does not explain why self-defense, if justified, should not protect an employee against an adverse employment action in all circumstances, no matter how serious the threat of violence may be. In any event, the court implicitly accepts that an employee does not have immunity in all cases merely by claiming, “He started it!”

This decision represents a significant limitation to the claim of wrongful discharge in violation of public policy in the context of self-defense. Employers would still be wise to evaluate instances of workplace violence on a case-by-case basis. There may be instances when an employee has no choice but to defend himself, and where the right to self-defense may be more compelling than an employer’s zero tolerance policy.

The decision is Newton v. Morgantown Machine & Hydraulics of West Virginia, Inc., Case No. 18-0653 (W.V. Nov. 11, 2019).

OFCCP Renews Focus on Disabled Individuals, Veterans, and Military Spouses 2019-11-15T12:36:14-07:00

Posted on November 15, 2019

By Matt Morrison

Last week was busy for the Office of Federal Contract Compliance Programs (“OFCCP”), the anti-discrimination watchdog that oversees the nation’s federal contractors and subcontractors. On November 8, OFCCP Director Craig Leen announced that the agency will soon begin selecting contractors for “focused reviews” of their compliance with Section 503 of the Rehabilitation Act. Section 503 bars contractors from discriminating against individuals with disabilities. The same day, the agency released a list of 500 contractors selected for an initial round of focused reviews under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”), and it issued a new directive highlighting VEVRAA’s protection of military spouses.

A “focused review” is an OFCCP compliance evaluation that is narrowly tailored and focused on specific issues. Here, OFCCP’s focused reviews will evaluate whether contractors are complying with nondiscrimination and affirmative action rules for disabled individuals and protected veterans. According to OFCCP, these reviews will include onsite visits to contractors and interviews with managers responsible for compliance – such as, for example, Human Resources personnel or ADA coordinators. OFCCP will also seek “to evaluate hiring and compensation data,” and for disability reviews, “the handling of accommodation requests.” The agency’s new directive also mandates that, during broader compliance reviews, compliance officers must evaluate contractors’ treatment of spouses of protected veterans.

Federal contractors and subcontractors should review their compliance with the agency’s affirmative action regulations for disabled individuals and protected veterans. The regulations, which OFCCP significantly revised in 2013, set specific “aspirational” benchmarks for the recruitment and hiring of disabled individuals and protected veterans, and impose an array of additional requirements on contractors. For example, under the revised regulations, which went into effect in March 2014, contractors must invite their employees to self-identify as disabled or as veterans at least every five years. It may be time for contractors to re-survey their workforce.

Employee of Private Contractor a Public Employee?? 2019-10-28T13:44:55-06:00

Posted on October 28, 2019

By Patrick Scully

The United States Court of Appeals for the Second Circuit has held that an employee of a private contractor enjoys the rights of a public employee with a “property interest” in his employment.

The plaintiff was employed as a court security officer (CSO) for a private company that contracted with the United States Marshals Service (USMS) to guard a federal courthouse. The plaintiff was covered by a collective bargaining agreement (CBA) between the private employer and the union. The CBA provided CSOs could only be terminated for “just cause”. However, under the contract between the USMS and the employer, the USMS had an unqualified right to remove any CSO from providing service at the federal courthouse.

When the plaintiff left his post early and his employer decided to retain him regardless, the USMS exercised its right to remove the plaintiff from working at the courthouse. The plaintiff sued in federal court, arguing that the “just cause” provision in the CBA gave the plaintiff a property interest in his employment entitling him to “due process” prior to removal by the USMS.

The Court of Appeals agreed with the plaintiff’s argument, effectively concluding the plaintiff is a “public employee”.

This decision is a troubling development insofar as it suggests that a private contractor must comply with all private sector employment laws while the government entity must simultaneously treat unionized employees of private contractors as public employees. The result appears to be de facto joint employment of such employees, which eliminates most benefits to the government of a contracting arrangement in the first place. It will be interesting to see if other courts adopt the Second Circuit’s analysis.

Atterbury v. United States Marshals Service, Docket Nos. 18-1713-cv(L); 18-2378-cv(Con)

On A “Need to Know” Basis 2019-08-15T13:40:24-06:00

Posted on August 15, 2019

By Alyssa Levy

Can you get sued for defamation because you conduct an internal investigation? It depends on who you tell and what you say. In Warren v. Federal National Mortgage Assoc., a Texas court ruled in favor of the employer on a former employee’s defamation claim, based, in part, on the employer’s qualified immunity privilege. The investigation was conducted without malice and the results were shared only with persons who had a valid interest in the investigation.

The former employee alleged the company made two types of defamatory statements about her: the investigative report itself (looking into her violations of company policy) and comments allegedly made by other employees. Under Texas law, qualified privilege protects employers from defamation liability for communications made while investigating alleged wrongdoings, so long as the communications are made only to persons with a “valid interest.” To overcome the employer’s qualified privilege, this employee had the burden of establishing by clear and convincing evidence that statements made during the investigation were made with malice or were distributed to persons who lacked a valid interest. The employee attempted to establish malice by pointing to things the investigator left out of the report, rather than evidence in the report, but the court said lack of investigation is insufficient to show actual malice. The employee then speculated that the company shared its investigation with other employees and their spouses – but there was no actual evidence that any of these third parties received the information. The evidence showed that only persons with a “valid interest” in the information received the report or were made aware of its findings. Thus, the employer was safeguarded by the qualified privilege defense.

The takeaway? Including only evidentiary findings and truthful statements in an investigative report and sharing it among only those on a need to know basis provides a backup defense to a defamation claim in many states.

Is “Employee” Written in the Cards? 2019-07-26T13:45:55-06:00

Posted on July 26, 2019

By Alyssa Levy

A federal jury will decide whether a tarot card reader who performed at the Colorado Renaissance Festival for thirty years is a Title VII employee for purposes of her retaliation claim. Plaintiff claims that she was not invited back for the 2016 season in retaliation for her complaint of sexual harassment.

Plaintiff’s lease agreement with the Colorado Renaissance Festival, through which she leased a space for her palm and tarot carding reading booth, contained a provision titled “Independent Contractor Status,” where she acknowledged she was not an employee of the Festival. The Colorado District Court, however, looked at the actions of her engagement with the Festival and found that her employee status is a question for a jury. In deciding to deny the Festival’s summary judgment motion, the court first looked at whether the Festival was an employer and then whether the Plaintiff was considered an employee, both under Title VII.

Festival as an employer: Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” Although the Colorado Renaissance Festival alone may not have the requisite fifteen employees, it is an integrated enterprise with the Pittsburgh Renaissance Festival, and the two combine to likely meet the requirement of a Title VII employer. The court noted the two festivals shared a payroll software license, website and ticket design, employment applications, vehicles, and employees, from which a jury could find the companies to be an integrated enterprise.

Plaintiff as an employee: To determine an individual’s status as a Title VII employee, the court used the Tenth Circuit’s “hybrid test,” to determine whether Plaintiff was truly an independent contractor, with the main focus on “the employer’s right to control the ‘means and manner’ of the worker’s performance.” The court first found it undisputed that the festival did not pay Plaintiff any direct compensation (no salary or hourly wage), and so, the court looked to the “threshold-remuneration test” for other direct or indirect benefits Plaintiff received from the Festival. The court found that the Festival was the ultimate source of her income because the Festival controlled Plaintiff’s access to customers who paid a fee for her services at the booth, which was evidence of direct or indirect benefits received by a Title VII employee.

The positive outcome of the threshold-remuneration test was in addition to the employment relationship a reasonable jury could conclude existed based on the level of control the Festival exercised over Plaintiff’s work. The Rules of Plaintiff’s lease agreement governed the specific hours to staff her booth; fines for closing without permission during inclement weather; her manner of speech, decorum, hairstyle, covering of tattoos, and performance; goods or services sold; equipment she could use; pre-approval for booth changes; discipline for violating festival Rules; advertising of her booth; and other terms.

The court’s analysis found enough evidence to survive summary judgement for the retaliation claim, but it is still up to a jury to determine whether the tarot reader will be dubbed an employee. Businesses that dictate the terms of a contractor’s independent work need to beware of being found to be an employer. This applies even when the contractor has to fit the theme of the workplace—here a renaissance village.

St. Michael v. Rocky Mt. Festivals, Inc., Civil Action No. 1:16-cv-02969-SKC, 2019 U.S. Dist. LEXIS 114040 (D. Colo. July 10, 2019).

NLRB Says Organizer Access to Public Spaces is Not on the Menu 2019-06-18T14:30:59-06:00

Posted on June 18, 2019

By John Alan Doran

Over thirty-five years ago, the NLRB held that an employer may not prohibit a union organizer’s access to an employer’s privately owned, but publicly accessible areas, such as an employer’s public restaurant or cafeteria, unless the organizer engages in “disruptive” conduct. A long line of subsequent Board decisions confirmed this rule. However, last Friday, the Board unequivocally reversed a slew of its prior decisions on this issue in UPMC, 368 NLRB No. 2 (06-CA-102465, June 14, 2019).

UPMC is a hospital facility that provides a publicly accessible cafeteria. Union organizers held a peaceful lunch meeting with some UPMC employees in the cafeteria. When UPMC Security learned of this, they called the police and had the organizers removed. The union filed unfair labor practice charges, and an Administrative Law Judge found in favor of the union.

On appeal, the Board reversed the ALJ’s decision. The Board reviewed a long line of federal circuit court decisions resoundingly criticizing the Board’s historical approach to organizer access to public spaces, and noted that the Board’s long-standing position directly contravened existing Supreme Court jurisprudence. The Board concluded that organizer access to privately owned, public spaces is governed by the Supreme Court’s decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1965), which held that an employer may lawfully exclude union organizers from its property, except in the very rare instances where either the union has no other reasonable means to communicate with employees or where the employer discriminates against the union by allowing solicitation or distribution by others but not the union. Applying Babcock & Wilcox to these facts, the NLRB held that the employer did not violate the Act by removing the organizers because they were engaged in distribution and solicitation and the employer had consistently excluded other patrons who engaged in such activities for non-union purposes.

While the UPMC decision noted that the ruling should not impact existing employer no-distribution/no-solicitation rules, it likely does impact the application of existing employer rules for employers that have publicly accessible areas on their private property. Regardless, this landmark ruling should prompt all employers to revisit both the language and the enforcement of their no-distribution/no-solicitation rules to ensure that they are legal, robust, up to date, and consistently enforced. Employers are also wise to note that they may not exclude union organizers from public areas merely because they are organizers—it is the conduct of soliciting or distributing that supports their exclusion, not their mere affiliation with a union.

New Paid Leave Law in Nevada 2019-06-18T09:17:46-06:00

Posted on June 18, 2019

By Lindsay H. S. Hesketh

Beginning on January 1, 2020, Nevada will require private employers with 50 or more employees to provide their employees with paid leave. Covered employers must allow employees to accrue paid leave at a rate of .01923 hours for each hour worked. Employees can begin using their accrued paid leave on their 90th calendar day of employment. Employers may allow employees to carry over unused accrued leave from year to year, but also may cap the carry-over amount to 40 hours. Similar to other leave laws, employers must also keep records tracking employees’ accruals and use of paid leave and provide an accounting of available paid leave to each employee on each payday.

Unlike some federal and state leave laws limited to family and sick leave, employees may use paid leave under Nevada’s new law for any reason and do not need to provide a reason for its use to their employer. However, employees must provide notice of their desire to use paid leave as soon as practicable. When employees act in accordance with this law, employers cannot deny employees the right to use paid leave, require an employee to find a replacement worker while on paid leave, or retaliate against an employee for using accrued paid leave. Nevada may collect remedies and penalties, plus a $5000 fine, for each violation.

The law does not apply to otherwise eligible employers during their first two years of operation; temporary, seasonal, or on-call employees; and employers who already provide their employees with the same or a more generous amount of paid leave.

You can read the entire bill as adopted here.

Nevada Adds Marijuana Screening Protection for Job Applicants 2019-06-13T09:43:31-06:00

Posted on June 13, 2019

By Matt Hesketh

A Nevada law that goes into effect on January 1, 2020, will make it unlawful for Nevada employers “to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the test indicate the presence of marijuana.”

The law expressly does not apply to applicants for: (i) a firefighter or EMT position; (ii) a position that requires drug testing to operate a motor vehicle; (iii) a position “that, in the determination of the employer, could adversely affect the safety of others”; and (iv) a position funded by a federal grant. The law also does not apply to the extent it conflicts with an employment contract or collective bargaining agreement and to the extent it is “inconsistent or otherwise in conflict with” federal law.

The law leaves several issues unresolved. For example, what type of risk will justify the exception based on the safety of others? How can employers contract around the law? How does the federal Controlled Substances Act, which classifies marijuana as a Schedule I substance, affect this law?

As with many issues in this context, Nevada employers should review drug testing policies and will need to be cautious as these and other questions play out in the courts or legislature.

EEOC Right to Sue Fiasco Ends in Whimper, Not a Bang 2019-06-12T14:35:37-06:00

Posted on June 12, 2019

By John Alan Doran

The EEOC settled a lawsuit challenging its issuance of some 54 “Right to Sue” notices involving BNSF Railway. Law 360 reports that the case settled when the EEOC agreed to set aside the Right to Sue notices.

BNSF sued the EEOC, claiming that the EEOC violated the Administrative Procedures Act (“APA”) when it issued the Right to Sue notices. BNSF asserted that the underlying charge that gave rise to the notices was flawed for a variety of reasons, not the least of which were that the charge did not specify the date of the alleged discrimination, the EEOC Commissioner approved the charge only after he officially left the EEOC, and the EEOC unlawfully disseminated the charge to potential plaintiffs when it was supposed to be confidential. Last year the trial court found that the notices constituted final agency actions that are subject to challenge under the APA.

This is yet another example of the EEOC’s overreach, which led to unnecessary and costly litigation. More importantly, the case may provide a roadmap for employers to challenge the bona fides of Right to Sue notices, which the EEOC has historically issued like candy out of a PEZ dispenser. And, while the EEOC regularly issues self-congratulatory press releases over miniscule settlements, it is notoriously silent on this settlement, which should come as no surprise to any of us.

BNSF Railway Co. v. EEOC, 4:18-cv-0031 (N.D. Tex. 2019).

Employer’s Reasonable Belief Is No Pretext 2019-04-11T11:03:29-06:00

Posted on April 11, 2019

By Beth Ann Lennon

Did the car hit the employee or the employee hit the car? This is not the beginning of a logic problem – it’s the question one employer recently encountered when investigating a “he-said, he-said” workplace dispute. Based on the investigation, the employer determined that the employee had lied about the contact with a company vehicle that left the employee bruised. The employer terminated the bruised employee and not the driver. The employee, of course, sued. The Tenth Circuit affirmed what should be obvious but somehow repeatedly becomes an issue in so many cases – can an employer terminate an employee if the employee disputes the allegations against him? So long as the employer (not the employee) “reasonably believed at the time of the termination that the [employee] had violated company policy” and the employer “acted in good faith upon that belief” the answer is an unequivocal yes. “Pretext” is not proven by an employee’s continued insistence that his employer should have believed him over another employee. Even if the employer “got it wrong,” being wrong on a fact dispute during an investigation is not evidence of discrimination. Another reminder of the importance of effective, and well documented, investigations.

Montoya v. Jacobs Technology, Inc., No. 18-2098 (10th Cir. April 9, 2019)

Posted on December 3, 2019

Posted on November 15, 2019

Posted on October 28, 2019

Posted on August 15, 2019

Posted on July 26, 2019

Posted on June 18, 2019

Posted on June 18, 2019

Posted on June 13, 2019

Posted on June 12, 2019

Posted on April 11, 2019

Email Disclaimer

Email Disclaimer