Employment Law Bits

Constructive Discharge: Can an employer be liable for sex discrimination for failing to provide new mothers access to a “lactation room”?

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. As amended by the Pregnancy Discrimination Act of 1978, sex-based discrimination under Title VII includes discrimination based on pregnancy, childbirth, or related medical conditions. Ames v. Nationwide Mut. Ins. Co., 747 F.3d 509, 513 (8th Cir. Iowa 2014). Can an employer be liable for sex discrimination for failing to provide new mothers access to a lactation room?

Recently, the Eight Circuit answered this question in the positive. The answer to this question is yes, however, for an employer to be liable in this situation, the employee must prove she was constructively discharged. To do that, an employee must show that the employer deliberately created intolerable working conditions with the intention of forcing her to quit.

In making this determination, courts will look at the treatment of the complaining employee by her employer. They will also take into consideration the employer’s attempts to accommodate the employee and efforts made to maintain the employment relationship.

Constructive discharge in a non-hostile work environment is difficult to prove because it requires the employee to show the intent of the employer. 

 

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Can you fire an employee for ranting against your company, or you personally, on Facebook?

American Medical Response fired one of its workers after she made negative comments about her supervisor on Facebook. The National Labor Relations Board (NRLB) issued a complaint against the company, alleging that it illegally terminated the employee. The NLRB further argued that a worker’s criticism of their boss is, “a protected concerted activity,” under the law, which protects employees’ ability to comment on the conditions of their employment. 

American Medical Response claims, in return, that the employee was fired because of serious complaints about her behavior and not because of the Facebook incident. 

Pundits set this case up to be precedent-setting in the ever expanding area of employment law regarding social media protocol. However, the case settled privately before going to trial. 

Under the terms of the settlement, which was approved by the NLRB, American Medical Response agreed to revise its rules. The company agreed not to discipline or discharge employees for engaging in discussions about wages and other work issues when not on the job. 

In 2013, the NLRB decided that a Facebook comment section among employees was protected concerted activity. The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management's refusal to address the employees' concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether their employer was violating labor laws. These conversations for mutual aid and protection are classic concerted protected activity.

Furthermore, an employer may be in violation of Section 8(a)(1) of the National Labor Relations Act if they prohibit employees from discussing “protected concerted activity” on social media sites.

So, can you fire an employee for publishing negative information about you or your company on a social networking website? The answer, while still in flux, is likely no. However, in order to curtail such employee activities, it is advisable to devise a comprehensive social media policy under the guidance of your attorney and ask all employees to sign and acknowledge it.

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Employers beware terminating protesting employees and those who use profanity

Section 8(a)(1) of the National Labor Relations Board (NLRB) Act protects employees who are terminated after they voice their opinion about working conditions. Employees do not lose this protection if, in response to the termination, they yell profanities at the employer. 

The NLRB recently reinstated an employee after he had been fired from a used auto-dealership. This employee protested certain working conditions at a company meeting. The employer responded by suggesting the employee leave the company if he didn’t like it there. The employee proceeded to yell obscene profanities in the middle of the meeting directly at the employer. The employer then, needless to say, terminated the employee. 

The only way an employee in this situation will lose the protection of Section 8(a)(1), is if the particular outburst is menacing, physically aggressive, or belligerent. Courts will use an objective test in determining whether the outburst amounts to a threat. However, there is a strong policy rational in protecting employees who protest working conditions. The standard to prove an employee physically threatened the employer is a high one and extremely difficult to meet. 

Employers must be careful in their decision to fire an employee after that employee uses profane language. If you have questions or concerns about terminating an employee under similar circumstances, please contact an employment law attorney. 

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Why would I want to offer a severance benefit to a terminated employee?

Employers are not required to offer severance benefits, but it is common practice among businesses. So why would you want to offer a severance package to a past employee? Well, there a quite a few reasons why it might be a good idea:                

• To provide an income continuation to a specific group of employees if they are terminated because of an event beyond their control
• To reassure current and prospective employees that they will have some protection from unanticipated job loss
• To avoid litigation- severance benefits can be offered in exchange for a terminated employee’s release of claims against the employee
• Because it is custom
• To show a sense of loyalty to the employees
• To attract new employees and retain existing employees

If you have any questions regarding severance benefits, please speak to an employment law lawyer.

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Sex Discrimination: Employers can be held liable for terminating an employee based on an angry co-worker’s intent on revenge

Employers can be liable for discrimination under Title VII of the Civil Rights Act even if another co-worker is responsible for the discrimination. The First Circuit recently held that an employer can face liability when it terminates an employee whose job performance has been slandered by an angry co-worker’s intent on revenge. That co-worker does not have to be a supervisor of the employee.

In this case, the employer terminated an employee after receiving poor job performance reviews by that employee’s co-worker. That co-worker allegedly threatened to undercut the employee’s work and get him fired if he did not engage in a sexual relationship with her. The employer was also aware of the entire situation, and still chose to fire the employee.

The court prescribes a test with three factors to determine when an employer will face liability in this type of situation.

1. The coworker must have acted, for discriminatory reasons, with the intent to cause the plaintiff's firing. 
2. The co-worker’s actions must have been the proximate cause of the plaintiff’s firing.
3. The employer allowed the co-worker's acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.

If you are an employer and need more advice on legally terminating an employee involved with an angry revenge-seeking co-worker, please contact an employment law attorney.

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The Supreme Court defines “supervisor” for purposes of Title VII

A recent decision by the Supreme Court limits employer liability in certain harassment cases. Workplace harassment based on sex, race, or national origin is strictly prohibited by Title VII; however, under the statute, employers will be held strictly liable in harassment suits, only when the harasser is a “supervisor.” If the harasser is an employee, then the victim must meet the burden of the negligence standard.

Unfortunately, the term, supervisor, is vague and remains undefined by Title VII. While many employees operate under a formal supervisory title, many lower-level employees are in charge of scheduling and assigning work, as well as directing other employees.

In Vance v. Ball State University, the plaintiff worked in a university kitchen as a catering assistant. She took most of her orders from the catering specialist, and she claimed that while working there she was harassed and assigned to unnecessary menial tasks because of her race. The plaintiff complained multiple times of the racial discrimination. However, the problem was never resolved. This resulted in the plaintiff filing a complaint in federal court, alleging that she suffered a hostile work environment, in violation of Title VII. She further advanced that the catering specialist was her supervisor and responsible for the hostile environment.

The court held that the catering specialist was not the plaintiff’s supervisor, and thus the employer — Ball State University — could not be held vicariously liable. Upon hearing the case, the 7^th Circuit determined supervisor liability only adheres when the harasser has “the power to hire, fire, demote, promote, transfer, or discipline an employee.” Since the plaintiff did not demonstrate that the catering specialist had requisite control over her employment, the plaintiff could not recover.

The Supreme Court ruled on the issue and in a recent 5-4 ruling determined, that for purposes of Title VII, employees can only count as supervisors when the have the power to hire, fire, and promote. Title VII itself does not define the term “supervisor.” Thus, the circuit split is resolved. 

 

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Employers beware the use of broad criminal background checks

It has been just over one year since the Equal Employment Opportunity Commission (EEOC) issued revised guidance for employers using broad criminal background checks. The guidance warned against using criminal background checks to exclude applicants without establishing why a criminal record should disqualify an applicant.

The EEOC has now filed its first two lawsuits on the issue since issuing the guidance last year.

The first was filed against BMW after a policy change expanded the use of criminal record checks in hiring decision. The warehouse in South Carolina previously had a policy that excluded applicants if they had a criminal record within the past seven years. When a new contractor took over the warehouse, BMW changed the policy to exclude anyone with any criminal record at any point in time. Of the 88 workers who were fired, 70 were black.

The second case involves two prospective employees of Dollar General, both of whom are black. One applicant was offered a job after she disclosed a six year old conviction for possession of a controlled substance, only to have the offer revoked alleged because Dollar General’s policy was not to hire anyone with such a record within the past 10 years. The second applicant was fired when a criminal record check showed she had a felony conviction, even after she told Dollar General that it was a mistake.

Both of these cases highlight the importance of employers using criminal background checks carefully when making employment decisions. In order to justify the use of criminal background checks, employers should consider the following:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.

By identifying how a specific conduct is linked to job performance, an employer can better explain why a background check is a valid element of a hiring process. It is also important to conduct an individualized assessment, allowing applicants to address their criminal record, especially inaccuracies and any reasons why the exclusion should not apply. And of course, employers must abide by the new CORI regulations.

MA employers must pay unused vacation time upon an employee’s departure

Under the Massachusetts Wage Act, when an employee is either terminated or let go from employment, an employer is required to pay that employee all wages due to him within a certain period of time. If an employer fails pay the employee in a timely manner, the employee can bring a claim against the employer under the Wage Act.

Such a claim has three parts: the employee “must prove

1. He was an employee under the statute;
   
   
2. His deferred compensation constitutes a ‘wage’ under the statute; [and]
   
   
3. The defendants violated the Act by not paying him his wages in a timely manner.” Doucot v. IDS Scheer, Inc., 734 F.Supp.2d 172, 192 (D.Mass.2010).

But wages do not simply include salary or hourly earnings. Under Massachusetts law wages also “include any holiday and vacation payment due the employee under an oral or written agreement.” Therefore, employers must compensate employees for the value of their unused holiday or vacation time when they leave their employment.

In a recent case, Dixon v. City of Malden, an employee’s contract was not renewed and a replacement for his position found. When he was told his services were no longer needed, he had fifty unpaid vacation days, which were worth over $13,000. The employer continued to pay him from March 21^st to June 29^th. When the employee filed suit against the employer for failing to compensate him for his vacation time, the employer countered saying that he had been more than fairly compensated through the continuation of his salary and benefits.

But, the Supreme Judicial Court disagreed with the employer. “Gratuitous salary payment, and the benefits associated with salary payments, do not constitute payments for earned and accrued vacation time.” Dixon v. City of Malden, 464 Mass. 446, 451-52 (2013). Furthermore, the court found that the employer was strictly liable, meaning the employer’s intent was not an issue, and the failure to pay the wages due at the time of firing results in damages being awarded to the employee.

While the court declined to assess triple damages (although triple damages are now mandatory if an employer is found to have violated the Wage Act, at the time this case was filed, such an award was at the discretion of the trial judge).

 

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Aging in the workplace: a more lenient law opens a legal avenue for all aging employees in Massachusetts

While proving age discrimination under the federal Age Discrimination in Employment Act (ADEA) is a rocky road, Massachusetts law paves the way for many wronged employees. Under the federal ADEA, employees over the age of 40 who are fired, or who suffer some other adverse employment action, must prove that their age was the only factor motivating their mistreatment. In other words, an employer can get the discrimination charge thrown out if it can prove that it relied on any non-discriminatory reason for the mistreatment other than age.

For example, if an older employee with an imperfect attendance record believes she was fired because of her age, an employer may successfully argue that the she was fired because of poor attendance – not because of age. If the court believes that bad attendance played some part in the decision, the employer wins.

However, last year the First Circuit Court of Appeals opened a new avenue of recourse to Massachusetts employees who believe they are the victims of age discrimination. In Diaz v. Jiten Hotel Management, the court interpreted the state’s anti-discrimination statute to include the “mixed motive” framework.

Under this framework, an employee can win his or her case by proving that age was at least one factor motivating the employer’s adverse action. So even if the employer has some other non-discriminatory reason for the action, such as frequent absences, the employee can prevail by showing that age factored into the decision. The more lenient law opens a legal avenue for all aging employees in Massachusetts. 

 

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Wrongful termination: legal definition and illegal reasons

Wrongful termination does not mean what most people think it does in our society. The reason for this misconception is that what most people consider unfair treatment in the workplace completely differs from what wrongful termination means in the legal sense. Just because employees feel they were unfairly treated or forced to quit does not always mean they were wrongfully terminated by legal standards.

Massachusetts utilizes a system of "at will" employment, also known as the Employment at Will Doctrine. This term means that employment is voluntary and indefinite for both employees and employers, and that employees may quit their jobs whenever they want without consequence, and that employers have the right to terminate employees whenever they want without consequence.

A general guideline that can be used in determining if you have been wrongfully terminated in Massachusetts is located at the bottom of this post.  Employers cannot terminate you based on your gender, race, creed, or if you are disabled, just to name a few. Retaliation can also be grounds for a wrongful termination suit. Additionally, employers cannot terminate you for reporting them to authorities for violating laws, which is often referred to as whistle blowing. They also cannot fire you for refusing to perform an illegal task for them.

If you think you have a claim for wrongful termination against your employer the best approach is to consult an attorney, preferably a employment law attorney who specializes in this area. Another option is to file a complaint with the MCAD or EEOC, government agencies designed to investigate violations of labor law.

Illegal reasons to discriminate against or terminate an employee under MA law include:

• abortion—refusal to perform, suggest, assist, or conscientious objection to
• aids test
• age discrimination
• cancer
• child abuse or neglect—reporting
• color
• credit history
• criminal record—discrimination
• disability discrimination
• fraud—Massachusetts state or local government, reports of defrauding—retaliation
• genetic information
• health—reporting risk to public health—health care providers
• heart disease
• height
• hypertension
• jury service
• leave—small necessities leave act
• leave—veterans day or memorial day for veterans
• marital status
• maternity leave
• mental facility or treatment—refusal to truthfully provide information relating to treatment in mental facility
• national origin discrimination
• patient abuse—reporting
• personnel file—rights to request copy, respond to negative materials, and expunge false materials
• political association and speech
• polygraph test—refusal to take
• pregnancy
• race
• religious discrimination
• sex discrimination
• sexual harassment
• sexual orientation discrimination
• subpoena for criminal action—responding to
• tenant complaint
• union activity or testifying
• voting
• work-related injury
• workers compensation

Photo credit: Microsoft