Archives: Employee Termination

Marriage is tough.  And with the divorce rate in the United States hovering around fifty percent, unless you work in a monastery, there are likely divorced individuals in your workplace.  This week, the New Jersey Supreme Court clarified that the New Jersey Law Against Discrimination’s protections for marital status protect those who are separated, in the process of divorcing, or divorced from discrimination in the workplace.

In a unanimous ruling, the court stated that unless an employer can show that it has a bearing on job performance or the workplace environment (unlikely), no recently uncoupled individuals can be the victim of discrimination or retaliation.  This also goes for job applicants.

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The case stemmed from an ambulance corps in South Jersey, where a supervisor, who had recently carried on an affair with another individual in the office, went to management and warned them that an “ugly divorce” would soon follow.  The corps, taking this as an anticipatory sign that his job performance would suffer, terminated him.

The lesson?  First, do not inquire as to marital status of prospective employees.  Second, do not make assumptions that divorce proceedings will interfere with an individual’s job performance.  Finally, remember that there is no religious exception for this prohibition.  Even if divorce is frowned upon in the subjective opinion of the company, this will not hold up in court.

Feel free to contact us with any other questions regarding this topic.

My colleagues will often joke of my mildly-paranoid nature when giving legal advice.  Although not an untrue assessment, such paranoia is not unfounded, and decisions such as the Second Circuit’s decision several days ago in Graziadio v. Culinary Institute of America, No. 15-888-cv (2d Cir. Mar. 17, 2016) reaffirm for me that a healthy level of paranoia can be helpful in this profession.

In Graziadio, the Second Circuit revived several claims brought by a former employee against the Culinary Institute of America (CIA) that it violated the Family and Medical Leave Act (FMLA), the federal law covering unpaid leaves of absence for medical and family care.  In sum, communications broke down between CIA and the Plaintiff after multiple discussions over several months regarding her requests for FMLA protected leave to care for her two children, ultimately resulting in her termination for job abandonment.  The Graziadio decision first serves to reaffirm what many human resources professionals already know; the FMLA’s regulations are technical, unforgiving, and to be followed to the letter in order to avoid a potential FMLA interference and/or retaliation claim.  The court delves deep into the facts presented to conduct a detailed analysis of whether each of CIA’s multiple requests for meetings, medical certifications, responsive communications, and a scheduled return to work date were in accordance with and satisfied the FMLA’s regulations.  Ultimately, the court found CIA’s actions were deficient under the statute, or at least required an expensive trial.

Bell TollsThis broad overview of the FMLA’s technical requirements is scary enough.  However, the decision in Graziadio is particularly notable because, for the first time, the Second Circuit (which oversees all federal courts in New York, Connecticut, and Vermont) explored the contours of individual liability under the FMLA. The Graziadio court found that the FMLA mirrors the Fair Labor Standards Act (FLSA), which in many aspects tends to be one of the broadest statutes around, with respect to individual liability and held that the human resources director involved could be found personally liable under the statute.

The Second Circuit analyzed the “economic reality” factors commonly reviewed in FLSA cases and found that, although traditional hire and fire authority rested with a vice president at CIA, the human resources director had been given effective control over the plaintiff’s employment by overseeing her FMLA leave requests. The human resources director also arguably exercised control over the Plaintiff’s schedule and conditions of employment by controlling the terms of her FMLA leave, handling all leave related communications, and ultimately communicating her termination.  Therefore, the human resources director could be held individually liable given this level of control.

The Graziadio decision is a great refresher on the common pitfalls lurking under the FMLA.  In addition, it is a clear reminder to human resources professionals to proceed with caution, because a mishandled FMLA leave request could put you personally on the hook even if the mistake was an honest one. Taking a step back and thoroughly analyzing any FMLA or other leave request is a necessity.

Moreover, please also remember that in addition to the FMLA, various state and local leave laws may also apply, and these statutes can be much more protective of an employee’s ability to take unpaid (or even paid) leave.  As a result, consultation with a local attorney who specializes in employment law is always advised.

As most employers are acutely aware, additional employee protections, prohibitions, and, most importantly, costs continue to pile on to the employer community every year, particularly in New York City (among other jurisdictions).  In addition, this trend shows no sign of abating given the current legislative environment.  As a consequence, thoroughly vetting prospective employees has become more critical than ever for employers.

Once an Trial by Fireemployee is on boarded, it is increasingly difficult, or impossibly fraught with liability, to terminate that employee.  Gone is the time when you could simply hire an employee and “see how it works out” during an orientation period with relatively limited liability.  Moreover, traditional mechanisms for reviewing employees before hire, such as criminal and credit background checks, or reviewing a candidate’s past unemployment history, have been curtailed in an increasing number of jurisdictions.  This has resulted in the need for more and more creative strategies and practices to ensure the right employees are hired from the outset.

One idea we occasionally hear is the possibility of an unpaid trial or try-out period for prospective employees.  This can take various forms, however typically a prospective employee, after completing his or her initial interviews, will be asked to “show what he or she can do,” i.e. prove his or her ability to directly perform the job.  This could either be a survey, a written test, the preparation of sample work product, a simulated workday (or more), or a combination of all of the above.  This practice can be incredibly helpful for a number of professions and industries.  A prime example would be for attorneys.  If a prospective law firm were to ask me, on the spot, to prove my legal writing ability by preparing a sample motion to dismiss, it would be incredibly difficult for me to fake my claimed abilities.  However, like all employment policies, this practice must be well crafted and implemented with caution.

As my fellow labor and employment colleagues here have previously written, laws involving the treatment of unpaid internships have seen heavy scrutiny recently in the federal courts.  However, the permissible bounds of unpaid trials, try-outs, simulations, and tests have not yet been explored, and almost no analysis and interpretive guidance exists.  As a result, some questions remain.  What may I ask a candidate to do?  Is a trial period appropriate if unpaid?

One solution is to simply pay the prospective employee for the trial period in order to avoid any unpaid wage liability.  However, paying any applicant poses a whole host of other issues.  If payment is given for a trial period, it (arguably) indicates an employment or quasi-employment relationship.  This is not advisable, as an employer wants to retain the ability to say “yes” or “no” to the candidate after the try-out has concluded, while minimizing exposure under employment and immigration laws (to the extent one can).  Furthermore, the proper tax treatment of such pre-employment payments is unclear.

While still an open issue, the better practice, depending on the exact facts, would be to have an unpaid pre-employment trial period or simulation.  In theory, the applicant would not yet be considered an “employee.”  However, the key is to ensure that any simulation or trial conducted is truly a test, occurs prior to an offer of employment, and that any work product is used for evaluative purposes only.  If the simulation or trial involves a cook who must prepare sample dishes, any food that is prepared cannot be served to customers or otherwise benefit the restaurant.  If the simulation or trial involves a typist who must transcribe audio recordings, the transcription cannot be a “real” project for a client or business, but simply a sample to be reviewed and evaluated.  Any materials and supplies used must also be provided by the employer.  The more the process hinders the business and is relatively short in duration, the more likely it will be found to be lawful.

An unpaid trial period or test can be a useful tool to evaluate a candidate and increase the quality of your hires.  However, any such policy should simply determine the candidate’s ability to perform the job and not otherwise benefit the business.  Before implementing any such policy, it is also critical that legal counsel review it thoroughly.  Whether a pre-hire trial, try-out, test, or simulation is appropriate under the circumstances is highly fact dependent and the answer may change depending on the state and/or local laws that may apply.

Last week, the calendar officially turned to winter.  While the weather has been uncharacteristically balmy in the Northeast, soon temperatures will plunge and cold and flu season will arrive.  In New Jersey, two employees who were terminated from their jobs after declining work-issued immunizations have brought suit claiming that the termination was nothing more than discrimination on religious grounds.

The two plaintiffs were employees of a faith-based social services agency in South Jersey.  The agency, which provides nursing home service, mandated the immunizations in light of their dealings with elderly and infirmed clients.  In lieu of submitting to the shot, the employees, who did not directly interact with client, were offered the alternative arrangement of wearing a surgical mask at all times.  The suit argues that a mask requirement is unnecessarily punitive and is not a reasonable accommodation of the terminated employees’ religious beliefs.

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This is merely the latest salvo in an increasingly common struggle.  Vaccination rates in workplaces have risen as companies have realized that the cost of the vaccinations far outweighs lost production time from sick days.  In addition, a provision of the Affordable Care Act ties some Medicare reimbursements to employee vaccination rates.

So how should your company approach the issue?  First, review your handbook and if a written policy is not contained in it, make arrangements for an update.  In the policy, be sure to set forth a detailed procedure by which individuals can seek an exemption on protected grounds.  Finally, have a plan to have these requests reviewed by individuals familiar with the applicant’s job duties.

While inoculation policies have decided benefits for your company, a clear policy on exemptions can obviate the need for litigation later.

Update:  Back in October, we brought you the story of Former USC Football Coach Steve Sarkisian and how the USC Administration handled alleged instances of  Sarkisian drinking on the job.  Sarkisian has filed suit in California State Court, claiming that, inter alia, he was terminated on the basis of his disability (alcoholism) .  He further alleges that USC failed to engage in the interactive process.  Notice that in his complaint, Sarkisian denies being inebriated, as his attorneys similarly recognize the need to separate the condition from the conduct.  You can view the Complaint here.

This week, the University of Southern California terminated Steve Sarkisian, their head football coach.  The firing came after a cavalcade of headlines that Sarkisian, essentially the CEO of a multi-million dollar enterprise, was increasingly showing up at practices, team functions, and even games allegedly under the influence of alcohol.  The move came one day after Sarkisian took an indefinite leave of absence to enter treatment for alcoholism.

Obviously, we here at the Employment Discrimination Report wish Coach Sarkisian nothing but the best in his attempts to embrace recovery and put his life back on track.  But the way USC handled the situation with a high-profile employee offers instruction on how to handle employees with substance abuse issues out of the public eye.

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Under the Americans with Disability Act and most state anti-discrimination statutes, alcoholism meets the definition of a disability.  But that should not be taken to mean an employer has to put up with an employee’s drinking on the job or showing up drunk simply because they are an alcoholic. The disease of alcoholism meets the definition of a disability, which means that an employer can’t take into account that an employee is an alcoholic when making employment decisions. However, an employer may maintain a blanket prohibition on drinking at work that applies to both alcoholics and non-alcoholics alike (If this is not in your handbook, it is well past time for an update).

An employee who can’’t meet those standards because of drinking may be disciplined, whether they are an alcoholic or not.  Taking Coach Sarkisian as an example, while he self-identifies as an alcoholic, USC can state that he was terminated for showing up intoxicated on the job, not because of his disease.  The moral of the story is that the employer must set policies that separate the disease from conduct.  This will allow employers to deal with employees caught drinking on the job yet still be in compliance with anti-discrimination statutes.

Feel free to contact our Labor and Employment Department with any further questions.

17427349_sOver the weekend an employee of the Texas Rangers was pretty upset about the University of Texas’ dismal performance in its 50-7 loss against Texas Christian University.  I get how upsetting it is when your college team plays like, umm, plays awfully.  I myself hurled a few insults at the tv screen as I watched my Ohio State Buckeyes play terribly against Indiana.

However, I realize there is a time and a place for my negative comments.  I would not, for example, go to the Firm’s @WorkplaceWatch Twitter account and complain.  This Texas Rangers employee apparently does not understand that.  As ESPN reported, the employee released a tweet from the Texas Rangers’ official Twitter account  that said “Fire Charlie. #bye,” which referred to the Longhorns’ coach Charlie Strong.

If you thought this was the action of an errant employee who did not understand how damaging the Tweet could be to the Texas Rangers organization, keep in mind that the person who sent the tweet was part of the Rangers social media team.  In other words, this is a person whose job it is to post to social media in an effort to enhance the organization’s reputation.

We talk a lot about training and policies on this blog. This is another example of why it is important to have policies and guidelines for the use of social media by employees and to clearly explain that termination could result from a violation of those policies. It is, of course, likely that the Texas Rangers do have such policies and that this person was trained in those policies.  As Forest Gump’s mom noted, “Stupid is as stupid does.”

When drafting such policies, employers should be mindful that some jurisdictions, like Colorado and New York for example, have laws that prohibit employers from terminating an employee for engaging in lawful off-duty conduct unless the conduct falls into an exception under the laws.  Terminating the employee in this situation is easier since the employee used the official company Twitter account to send the tweet, but employers in jurisdictions that have lawful off-duty activities statutes need to be careful before acting on a negative tweet.

38552358_sIn a highly anticipated decision, the NLRB today departed from three decades of an accepted standard for joint employment status and issued a new test that makes it far more likely that, even if a company does not directly employ an individual, it may be liable for employment torts and other encumbrances. (See Browning-Ferris Industries, 362 NLRB No 186).

In this particular action, Browning-Ferris Industries of California, Inc., utilized the services of numerous employees by way of an outside staffing firm.  This is a common practice, as almost 3 million workers were temporarily placed with American companies in 2014.  Prior to today, a company utilizing such services was only considered a joint-employer only if it had “direct control” over working conditions.

Under the new standard, which the board said was necessary due to generational and technological changes in the workplace, a company is a joint employer if it exercises “indirect control over working conditions or if it reserves the authority to do so.”  This implicates two huge groups:  companies who utilize staffing services and franchisers.

The practical import of the decision is that these companies, who previously enjoyed immunity from discrimination and harassment suits, workers compensation, and other benefits obligations, will have to completely revamp the treatment of such employees.  This will require things like handbook revisions, harassment training for outsourced employees, and an understanding that outsourced workers, who often come and go quickly, most likely will have to treated as in-house employees.

With the currently constituted Board in place for at least two more years, keep a look out for upcoming decisions that explain more specifically what does and does not consitute “indirect control over working conditions.”  We will certainly do so.

 

43369264_sI am pleased to be a co-presenter at this webinar on September 9, 2015.  The EEOC and NLRB have been challenging severance provisions that they feel may stop an employee or former employee from cooperating with a charge filed with the agency.  The SEC also has recently been asking companies to provide copies of their separation agreements as part of its investigation of alleged wrongdoing.

We will discuss these recent challenges, as well as identify contract provisions that have been labeled problematic and provide practical drafting tips to avoid the wrath of these agencies.

If you would like to attend this webinar, you can register by clicking this link.  You’ll want to make sure you use this link as I can offer attendees 50% off the normal registration fees.

Hopefully, you can join us!

Vacation PayOften employers will neglect or overlook revising their vacation and/or paid time off (PTO) policies, which are buried in the employee handbook that was last revised a half-dozen years ago. For many, this is a big mistake. Depending on your jurisdiction, a poorly drafted vacation/PTO policy can carry significant potential liability. If a company’s vacation/PTO policies are unclear or, worse, there are no such policies, its employees may be able to claim they are entitled to payment for their accrued but unused vacation upon termination.

For example, in New York, if there is no clear statement that accrued but unused vacation/PTO time is forfeited upon termination, employees can potentially claim payment for all accrued but unused vacation/PTO. In addition, the company may be left unable to “correct” (i.e. take away) already accrued vacation/PTO time payable under these policies. In other jurisdictions, policies that deny payment for accrued vacation/PTO may be prohibited altogether (e.g. California). Employers must also be cautious of the interplay of state and local paid sick (or other) leave laws in order to ensure any legally required leave does not become payable upon termination.

What should you do? First, it is important to know your state and local laws regarding vacation/PTO/paid leave accrual, usage, and payout. Next, you should review all prior versions of your vacation/PTO policies to determine what exactly has been provided and whether or not you can correct those policies retroactively. In jurisdictions that allow it, vacation/PTO policies should be revised and tailored as much as possible to prevent the excessive accrual and payout of vacation/PTO upon termination and reduce the company’s potential liability.

Some companies believe in their business judgment that it is beneficial to provide some form of economic payout to departing employees, ostensibly rewarding them for years of loyal service. This is admirable, however automatic vacation/PTO payouts reward both good and bad employees alike. As an alternative, offering severance, and conditioning it upon the signature of a general release agreement, is a better course of action. This allows the company to retain discretion over how much will be paid to each departing employee depending on the circumstances and also helps limit potential legal claims. General releases do not eliminate all claims, but they go a long way and certainly help us attorneys get a good night’s sleep. As always, we suggest speaking to legal counsel about any contemplated practices in order to ensure they are implemented lawfully and effectively.