This is not a post about any of the activities of the Trump Administration even though the headline uses his catch phrase.  We are taking a break from our multi-part series of commenting on the investigation of Trump’s ties to Russia to address a completely different topic.  Retaliation.  (Okay, maybe not a totally different topic depending on what really was the reason for Director Comey’s firing).

Law 360 is reporting that a former Giants’ defensive lineman is suing his former employer Home Towne Rx Pharmacy for firing him after he reported that two female employees had allegedly been sexually harassed by one of the company’s executive vice presidents.

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At this point, we literally know nothing about the case as we have not even seen the complaint.  However, according to the report, the complaint alleges that Leonard Marshall was fired only a few weeks after reporting that the women were complaining of harassment by the executive vice president.  It also alleges that the CEO of the company explicitly told Mr. Marshall that he was being fired for raising the complaint and spreading false claims against the other executive.

In my over 20 years of litigating employment discrimination claims, I can tell you that there are always two sides to every story, and sometimes more.  Even if the allegation that he was explicitly told that the complaint was the reason for his termination is false, at the least, the timing of Mr. Marshall’s termination should have given the company pause about whether they were justified in terminating his employment and whether that justification could be backed up by anything in writing.

If the allegation is true, the same question about documentation should be raised. For example, if the company did an investigation of the claims of harassment and found that Mr. Marshall and/or the women were making up the allegations, how did the company come to that conclusion?  Is it just a he said/she said situation or are there emails, texts, or other documentation that show the claims are false?

There are certainly cases where an employee or witness involved in a harassment investigation lies and a company is thus justified in firing that employee.  However, employers should tread very lightly in disciplining the complaining employee or a supporting witness for lying in the investigation.  In such cases, if I am counseling a client, I want to see more than it was a “feeling” that they lied.  I also want to see more than a bald assertion from the accused that it is all made up lies.  (Oh, look at that, maybe we did not take a break from commenting on politics after all.)

On April 19, 2017, West Virginia Governor Jim Justice signed a bill legalizing the use of marijuana for medicinal purposes.  With the passage of Senate Bill 386, West Virginia becomes the 29th state to adopt a medical marijuana law.

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Employers need not panic.  This does not mean you have to ignore your employee toking in the bathroom or ignore a positive drug test simply because the employee has a medical marijuana card.

The law does contain a broad anti-discrimination provision prohibiting an employer from taking an adverse action against an employee solely because that person possesses a medical marijuana card.  However, the law specifically says that no employer must make an accommodation for the use of medical marijuana in the workplace and employees can be disciplined for being under the influence of marijuana at work.

The law also makes it illegal for any patient to operate or be in physical control of any of the following:

  • chemicals which require a permit from a state or the federal government;
  • high-voltage electricity or any other public utility; or
  • vehicle, aircraft, train, boat or heavy machinery

The law also states that a patient may not perform employment duties at heights or in confined spaces, including mining, while under the influence of marijuana.  In furtherance of addressing safety concerns, the law specifically states that employers may prohibit an employee from performing any task while under the influence of marijuana which the employer deems life-threatening to either the employee or other employees.  Employers may also prohibit employees from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.

Employers in West Virginia should update drug policies to address the new law.  No person will be issued a card until July 2019 so you have some time, but like with all things, while it is fresh in your minds it is a good idea to have counsel review and revise your policies.

Last week, we commented on the fact that Representative Nunes had recused himself from the investigation into President Trump’s Russia ties after appearing less than impartial in the investigation.  Some employers may view the actions of Nunes in briefing the White House on certain classified information was not really wrong and, it could be argued, simply part of the investigation in confronting the accused.

It is certainly true that in any investigation, care should be taken to insure that both the complaining party and the accused have an opportunity to be heard.  However, there is a time and a place for confronting the accused.  Generally speaking, when conducting an investigation, it is usually best to speak with the accused after all other facts have been gathered.  In this way, you can conduct the investigation in a much more efficient matter and will not have to repeatedly interview the accused as more evidence is gathered.

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Even more importantly, by waiting to gather even more evidence, you may avoid implicit bias and insure a more thorough investigation.  Clients routinely ask me how investigations are going midstream and I always truthfully answer that “I’m not sure yet.”

I’m not simply avoiding having a discussion with my clients when I say this.  When I act as an investigator for clients, I know that I work to keep an open mind until all evidence is gathered.  This is not always easy as it is human nature to start forming opinions about the stories being told to you.  However, if I prejudge a witness as not being credible or that their claims are ridiculous, I will consciously or not, steer the investigation towards the conclusion that fits that prejudgment.  In such cases, investigators may short cut an investigation and miss the second or third claim that has merit.

I’ve been listening to a decent amount of criminal justice podcasts, namely “Undisclosed,” and they talk frequently of “confirmation bias.”  In short, confirmation bias in an investigation means that if an investigator assumes a certain result is likely, then the investigation will lead to that conclusion.  In order to make sure that the desired conclusion is reached, investigators may ignore information that does not fit that conclusion or exaggerate the importance of evidence that does fit the conclusion.

By waiting until an investigator has a full picture of the evidence for and against an accused, the investigator can hopefully avoid any confirmation bias.

Yesterday, we posted about Representative Nunes stepping down from the investigation into Russian interference with the election.  As we noted, as a direct result of his actions in briefing the White House on certain evidence that was found, he appeared less than impartial.

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The mere fact that he briefed the White House in the midst of the investigation is to me less damaging to the appearance of impartiality than what he actually said.  After briefing the White House, Representative Nunes rushed to make statements to the media that a “source” showed him intelligence reports indicating that communications of members of Trump’s campaign had been collected by the intelligence community.  This gave President Trump the chance to argue that he was “somewhat vindicated” and that his claims of wiretapping were true.

What likely got missed by most people in Representative Nunes’ statements was the fact that there was no evidence that Trump Tower or Trump himself had been illegally wiretapped as had been claimed.  Although Nunes and Representative Schiff had both previously noted there was no evidence of illegal wiretapping, Nunes’ statements as he rushed from the White House made it appear that there was new evidence since those statements; evidence that corroborated the President’s claims.

Instead, as was clarifed by Nunes in later days, members of Trump’s team were not targeted for a wiretap.  Rather, those members merely happened to be recorded having communications with Russian agents in legal surveillance.  Even fellow Republicans questioned why Nunes made the disclosure he did or that it was significant.  However, by this point, the damage was done and it is likely that the general public at large believes the broader claim that there was evidence that President Trump was subjected to an illegal wiretap.

If it is not already apparent from the above, making public statements about details of an ongoing investigation is not a good idea.  In the employment context, this could have a chilling effect on the investigation and future investigations.  For example, employees may not raise future complaints if they believe that an investigation will not be confidential.  With regard to the current investigation, witnesses may not come forward as they believe there is no point since there was already a finding in the investigation.

Finally, even assuming that a thorough investigation is completed and no wrongdoing is found, the complaining employee will likely not believe that there was an impartial investigation.  Instead, the employee will believe that the employer was always on the side of the acccused and is now engaged in a cover-up to protect that employee.

About a month ago, we posted that employers could take some lessons from the investigation into President Trump’s claims that he was illegally wiretapped by the Obama Administration.  This investigation still proves to be a cautionary tale for employers.

One of the key, and sometimes difficult, decisions in any investigation is who should conduct the investigation.  Should the investigation be done by HR or an executive in the Company?  Or should the investigation be conducted by an outside third party?

What may have gotten lost in last week’s news of the bombing in Syria is the fact that House Intelligence Chairman Devin Nunes has recused himself from the committee’s probe into Russian interference in the election.  This news came after Nunes was criticized for speaking publicly about classified surveillance reports that seemingly gave support to President Trump’s claims that he was wiretapped.

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Why the criticism?  Well, because before Nunes disclosed the evidence to his fellow members of the committee, he briefed the White House on what he found.  As anger grew over this breach of protocol and the fact that it lent credibility to claims that the investigation was biased, it was discovered that he had in fact reviewed the documents in question at the White House.

Now that he has recused himself in the face of ethics charges filed against him for his actions, the question remains whether anyone on the outside will believe that the new lead, Representative K. Michael Conway (R-Tex.) will conduct an impartial investigation.

Employers should take note that the perception of impartiality is key to a good investigation.  In this case, regardless of whether Nunes could be impartial if presented with evidence of ties to the Trump campaign and the Russian hackers, by so publicly rushing to the defense of the President and his team before any investigation was complete, he tanked the investigation.  Employers should be careful to select an investigator that can be seen as impartial and not favoring the accused in the investigation.

Recently, the United States Court of Appeals for the Seventh Circuit issued an opinion with significant employment law implications.  As you might recall, a panel of the Seventh Circuit issued a split 2-1 decision a few months ago, holding that Title VII’s prohibitions against sex discrimination in employment did not extend to protect employees on the basis of their sexual orientation.  The full Seventh Circuit then heard oral argument about whether the panel decision was correctly decided in the case, Hively v. Ivy Tech Community College.

Last week, the Seventh Circuit sitting en banc reversed the panel’s decision, holding that Title VII’s provisions that prohibit discrimination in employment on the basis of sex necessarily also prohibit employment discrimination on the basis of sexual orientation.  This decision is a binding interpretation of federal law for employers with employees within the Seventh Circuit, which includes Illinois, Indiana, and Wisconsin.  This decision means that employers in those states should immediately review their policies, procedures, and training regimens to ensure compliance.  However, employers outside of those states aren’t necessarily “off the hook” and should strongly consider reviewing their own policies in light of this decision.

To learn more about what this decision could mean for your workplace, check out our recent Labor & Employment Alert on the case.

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In the past year or so, we’ve noticed an increasing legislative trend around the country — governing bodies passing bills to prohibit employers from inquiring about their job applicants’ wage history.  The precise details of these efforts naturally vary from locale to locale.  Still, whether at the federal, state, or local level, the rationale for these legislative efforts is often the same: they are efforts to close the gender wage gap.

This past August, Massachusetts became the first state in the nation to enact a statewide ban on the practice of employers seeking wage information from their applicants — a practice that many employers currently use as a matter of course in their hiring process.  Shortly thereafter, federal legislation seeking similar goals was introduced, and other states have started to get the ball rolling on their own legislation.  Cities have also joined the fray, with Philadelphia Mayor Jim Kenney signing a city ordinance to this effect several months ago.

Effective May 23, 2017 (that’s eight weeks from today, if you’re counting along with me), Philadelphia will become the first city to ban employers from asking about the wage history of job applicants.  The provision will take effect as an amendment to the City’s Fair Practices Ordinance and will be enforced by the Philadelphia Commission on Human Relations.  Our colleague Steven Ludwig has written an excellent summary of the law’s provisions, which you can find here.  Philadelphia employers should check out this information and begin planning (to the extent they have not done so already) to ensure their hiring procedures comply by May 23rd.

Moreover, in your author’s humble opinion, it’s highly likely that similar legislative efforts will continue to spread and gain steam across the country.  While the federal government is unlikely to act in the next two years, states and cities are likely to begin the process of following suit.  Employers should be mindful of the jurisdictions in which they operate and key tabs on legislative developments in this area that may affect their hiring practices.

TSpring Cleaninghe equinox has come and went, meaning warm weather is thankfully approaching. This also means spring hiring season is here for many employers. However, caution is advised. Given the ease of un-vetted online job postings, many forget that these posts are legal minefields (and public too). Federal, state, and local agencies (as well as plaintiffs’ attorneys) can see job ads just as well as potential candidates. As you pack away the winter coats, make sure to dust off your job posts and remove any potential legal snares.

One of the most common issues we see regarding job ads is “preference” language. The Equal Employment Opportunity Commission (“EEOC”) explicitly states that it is “illegal for an employer to publish a job advertisement that shows a preference . . . because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.” While this may seem obvious, inadvertent word usage that may show a preference for one protected category over another is often overlooked.

For example, the EEOC notes that the phrase “recent college graduates” may indicate a preference for younger employees, and may violate the law. In addition, historically gendered job titles are frequently used in the hospitality industry, such as “waitress,” “hostess,” or “delivery boy.” Government agencies will often argue that such terms indicate a preference for one sex, gender, or age over another, even if all sexes, genders, and ages were welcome to apply. Moreover, legitimate job requirements, such as “must be able to lift ‘x’ pounds,” must be evaluated with legal counsel to ensure that disability and accommodation laws are complied with, as well as to ensure no overtime exemption misclassification issues are created.

In addition, in some states and localities additional discrimination protections are offered above those available under federal law. The New York City Commission on Human Rights (“NYCCHR”) issued notable guidance in 2015 on the treatment of transgendered employees and applicants. The NYCCHR has since aggressively investigated offending job advertisements that indicate a proclivity toward traditional gender categories, among other problematic conduct. (More information on NYC’s transgender guidance is available here.)

However, remember that simply sanitizing one’s advertisements is not enough. Hiring practices matter too. The EEOC notes that “an employer’s reliance on word-of-mouth recruitment . . . may violate the law” where the newly hired employees mirror the current workforce.

In sum, it is critical to review all job advertisements for problematic language, and train human resources and hiring personnel to be aware of these issues. Discriminatory job language can cause unneeded headaches with federal, state, and local governmental agencies, or that job posting may be “Exhibit A” in your next lawsuit.

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It seems that every day we are hearing something about investigations involving the White House.

Whether it is the investigation into Russia’s hacking of the election that has resulted in the indictment of suspected Russian spies or President Trump’s call for an investigation into whether he was wiretapped, it seems everyone wants an investigation.

Such calls for investigations bring up other questions — should there even be an investigation, who should do the investigation, when the investigation should start, and when should the investigation end.  These are all questions faced by employers when addressing employee complaints.

It may not be fair to compare investigations into employee conduct to Congressional hearings or law enforcement investigations, but employers can learn a lot from those investigations.  In later posts, we’ll get into pitfalls of a poor investigation, but for now we are focusing on whether an investigation is necessary.

Employers frequently face complaints from employees of varying degrees of credulity and proof.  What does an employer do with the “crazy” or unsubstantiated complaint?

Let’s look for example at President Trump’s recent tweets about alleged wiretapping.  Those are pretty sensational claims, that, if true, mean members of the Obama Administration violated the law.  Based on what we know now, the complaint appears to be unsubstantiated by any proof.  Instead, as the White House calls for others to come forward with that proof, it appears that the allegations are based on untrustworthy sources or the President’s bare belief.  This is not that dissimilar from an employee who claims that he or she has been discriminated against based on a “feeling.”

Employers are often tempted to stop the investigation at this point.  After all, if the employee cannot come forward with any proof, then why should the employer waste resources continuing the investigation?

There are two very good reasons to continue.  First, although the employee cannot articulate proof, the employee’s feeling may actually be correct.  In those cases, stopping the investigation early means that a problem will not be uncovered and resolved, leading to much greater liability in the future.

The second reason is for the integrity of the complaint process.  If employees feel that their complaints are summarily dismissed without any investigation, those employees will believe that filing a complaint is fruitless. Those employees are likely to tell others not to complain because the company does not take complaints seriously.  Once that happens, employees who file complaints in court before filing any internal complaints will have an argument against the employer’s affirmative defense that the employee failed to use the internal complaint procedure.

So, the lesson is, even if the complaint seems to be a waste of time, devote some time to investigating it.  Just how much time to invest will be the subject of a future post.

 

 

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A notable case caught our eye recently coming out of the United States District Court for the Middle District of Florida filed by the Equal Employment Opportunity Commission (“EEOC”). Namely, The EEOC sued CRST International, Inc. (“CRST”) claiming that it, among other things, violated the Americans with Disabilities Act (“ADA”) by failing to accommodate and retaliating against a prospective truck driver.

The new driver allegedly requested the use of a prescribed emotional support animal to mitigate post-traumatic stress and mood disorder. CRST purportedly told the new driver simply to leave his dog at home and refused to provide an accommodation, citing unbendable company policies, and effectively rescinded his employment offer. Unfortunately, usually these policies must bend, or at the very least the possibility explored.

While the CRST case is in its early stages, and no court decisions have yet been issued, this complaint serves as a great illustration of just how far reaching the disability discrimination laws are. Here many employers would scoff or summarily dismiss the seemingly unworkable request of having a service animal in a trucking business. However, the CRST complaint reminds us of the potential disability accommodations that employers must consider and make. Regardless of the nature of the requested accommodation, the employer is, at the very least, required to engage in the interactive process with the employee and determine what, if any, reasonable accommodations can be made. Otherwise, you may end up on the wrong side of an EEOC lawsuit alleging ADA retaliation and failure to accommodate.

Please remember that when an employee or prospective employee requests a workplace disability accommodation in order to perform his or her job, an employer generally must consider the accommodation and, if it can be implemented without undue hardship, it must be granted. Anytime an accommodation request is received, never dismiss the request out-of-hand. Make sure to talk to your in-house human resources department or legal department, or involve outside counsel if necessary, to determine your legal obligations. Also, note that your state or local laws may provide additional protections beyond the ADA.