I am sure that a lot employers lost productive work time yesterday with the Comey hearing. I must admit that I did not watch the Comey testimony yesterday.  I actually had a busy day and was afraid of getting sucked down the rabbit hole.  I do intend to catch up on it.  If you are so inclined, the New York Times has the full video and a transcript of the testimony.

I did read the seven page statement Comey released in anticipation of his testimony.   That seven page document detailed the meetings Comey had with President Trump and most shockingly, the statement that he felt compelled to start notes of the meeting on a laptop in his car immediately after leaving the White House.

Although the notes themselves are not conclusive proof, they could go along way in proving his claims.  Some may say that Comey was being needlessly paranoid, however, he did exactly what I wish all managers would do.  He saw an issue and he documented that issue.

Too often, whether I am simply being asked to give advice or I am trying to defend a lawsuit, I hear from managers that the employee was a terrible employee who had been spoken to on multiple occasions.  However, there is no documentation that corroborates that.

I do understand that some discipline and counseling will be verbal, but managers should still take notes of such meetings.  If for no other reason than when you are sitting down to do more formal discipline, you will be aware of what was discussed and on how many previous occasions.

The second thing that Comey did that managers should do is share the documentation.  He wrote that he showed his notes to senior FBI officials as soon as he wrote them. This makes it harder to argue that the notes were not contemporaneously made.

Once counseling or discipline is documented, the manager should forward that documentation to HR to be placed in the employee’s file.  This will go a long way to defending the company and employer in any later litigation.

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.)

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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.

Bill Egan writes:

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Copyright: tashatuvango / 123RF Stock Photo

Aside from whistleblower and highly offensive sexual harassment cases, there may be no claim that elicits the protective instincts of the average jury more than disability discrimination cases, especially where the disability is cancer-related.  Employees with disabilities who are terminated without demonstrable cause often are seen as suffering the double indignity of dealing with whatever hardship their disability imposes and the termination of their employment because of it.  Adept attorneys paint a picture of the employer kicking an employee when he’s down and when you place the outcome of such a case in the hands of average Americans (i.e., a jury), and you have the makings of a big verdict.

Such was the case of Axel v. Fields Motorcars of Florida, Inc., where a Mercedes dealership terminated a 71-year-old used car and wholesale manager, Michael Axel, who had been diagnosed with kidney cancer in 2010.  Following surgery, the cancer metastasized to his lungs.  Axel elected to undergo an experimental treatment that came with very unpleasant side effects described as “tremendous” stomach pain, sores in his mouth, and sores on his feet.  Evidence was introduced that Axel’s supervisor expressed frustration with Axel because, among other reasons, he was “not getting real doctors treatment” but “other holistic or crazy things.”

The dealership terminated Axel in 2014, allegedly for making misrepresentations in 2004 on paperwork needed to obtain an auto auction access card for his son, a non-employee of the dealership who occasionally assisted Axel in transporting used cars to the local auto auction.  The son was not accused of misusing this authority other than to move vehicles.  In fact, he was employed by the dealership at the time of his father’s termination.   The misrepresentation on which the termination allegedly was based was discovered ten years after the fact, leading to the decision to terminate.  Pre-trial submissions did not reveal much in the way of other performance deficiencies by Axel.

The jury apparently rejected the dealership’s stated reason for the termination as pretext for disability discrimination.  It found that Axel was fired because of his disability in violation of the Florida Human Rights Act and awarded Axel $680,000 in lost wages and benefits, $600,000 for emotional distress, and $3.22 million dollars in punitive damages.  Notably, despite allegations of stray remarks reflective of possible age animus, the jury found that there was no age discrimination in the decision to terminate Axel’s employment.

A runaway verdict?  Perhaps, but verdicts of this nature and magnitude seem to occur more frequently in disability discrimination cases. This jury’s rejection of the age discrimination claim demonstrates a thoughtful and discerning assessment of the evidence presented.  This case serves as a reminder that disability discrimination cases stand in a class of their own and must be handled with utmost care and discretion.


Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

Gambling at casinos and on sports events have been a part of the fabric of American life since long before employment laws existed.  Unfortunately, the thrill of the bet can give way to a compulsive addiction that, left unchecked, can destroy an individual’s life.  If you have a workplace of any size, it is likely that there is at least one employee who suffers in silence from gambling addiction.

In a large percentage of cases, this has no effect on the workplace environment.  However, often gambling addictions give way to substance abuse, depression, and theft, all of which have serious implications on the workplace.

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However, federal and state courts (in most states) have been very clear that gambling addictions are not disabilities under the Americans with Disabilities Act or most of the state corollaries.  Despite the fact that the definition of “disability” has broadened over time, an employee is likely not going to be able to sustain an action for discrimination based upon a gambling addiction.

What should an employer do if an employee confesses an addiction to gambling?  Well, obviously we recommend referring them to the myriad of support groups that address the underlying issue (1-800-GAMBLER being the most well-known).  If the gambling addiction is accompanied by a disability that is recognized by state and federal law, that disability should be addressed. Beyond that, if the gambling addiction has led to bona fide performance issues, any discipline should be meted out at the discretion of the employer.

First, a disclaimer.  Let me assure you that the contributors to the Employment Discrimination Report run the full gamut of the political spectrum.  This is not a post about politics, it just so happens that our demonstrative example comes from the presidential race.

It is not uncommon for employers and employees to execute Non-Disclosure Agreements (NDAs) to govern the employment relationship following its conclusion.  To wit, one of the major presidential candidates made all campaign employees (and volunteers but that is a whole other can of worms) sign an NDA that governs all information of a “private, proprietary or confidential nature or that (the candidate) insists remain private or confidential.”  The NDA in question further prohibits former employees from making negative comments regarding the candidate or family members…in perpetuity.  It’s worth noting that the other major candidate also has asked campaign employees to execute an NDA, though the substance of it remains undisclosed.

Compensation on the Whisper

When executing NDAs with employees, be it at the end of the employment relationship or as part of a restrictive covenant at some earlier point, it’s important to do keep the scope reasonable so as not to be judicially struck later.  Here are some simple rules that were not followed above:

  1. Identify with specificity the information that must be kept private and confidential. Simply saying “confidential information” is a recipe for failure on this front, as the ambiguity as to what information is “confidential” will be read against the employer.
  2. Put a time frame on the responsibility. While it is not per se impossible to have an agreement enforced in perpetuity, the path of least resistance is put a time frame on the responsibility that bears some relationship to legitimate business necessity.
  3. Restrict Nondisparagement to Reasonable Topics. While nondisparagement clauses, the legal cousin of NDAs, are valid, they similarly need to be narrowed in scope to include only information for which there is a legitimate business purpose.

While keeping your corporate information in-house is a compelling aim, understand that there is no fool-proof way to keep information under wraps.  But adhering to simple rules of the road will help make sure that What Happens At Work, Stays at Work.

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.