Recent trends reveal that employment retaliation claims are on the rise. Further, courts are taking a hard line on offending employers accused of retaliation in employment. A review of United States Supreme Court decisions in retaliation cases reveals a remarkable degree of agreement among the Justices. Even conservative Justices who are considered supportive of business as a matter of judicial philosophy do not take kindly to retaliation against employees who have asserted workplace legal claims.
With the NLRB recently issuing a complaint, http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2794.pdf, against a Connecticut employer for terminating an employee for posting comments on Facebook (or maybe its because a lot of HR Departments have been watching ”The Social Network,” http://www.thesocialnetwork-movie.com), many employers have been asking whether they need a social media policy or whether they need to change existing policies. (Of course, some employers are still asking, “What is social media?” and “Doesn’t ‘twittering’ violate our sexual harassment policy?”)
A Los Angeles public school teacher killed himself after the Los Angeles Times recently published the database of “value added analysis” for all LA public school teachers on which the teacher in question didn’t fare well. The “value added analysis” uses improvements in student test scores to evaluate teacher effectiveness. The analysis is designed to replace the tenure system with a performance system. Its critics use the teacher in question as proof of its flaws. This teacher was regarded by his students and colleagues as a good teacher. He tututored students before school started and stayed with them after school if necessary.
At times, I have surmised that one reason women are usually the victims of sexual harassment is that most men can’t resist the power of The Man Gene. A recent case demonstrates that some men can defeat The Man Gene and even be the victims of sex harassment. In EEOC v. Prospect Airport Services, Inc., a male employee filed a harassment claim against his employer and a female co-worker.
I’m not sure there’s been an employment law subject receiving as much attention in the last 12-18 months as social media. Employers have implemented policies to prevent employees from using social media to put the employer in a bad light. The National Labor Relations Board has just issued a complaint contending that such policies can be a violation of the National Labor Relations Act.
Motor vehicle crashes are the leading cause of worker fatalities, and distracted driving increases the risk of such accidents. Texting is the distraction of all distractions. The National Highway Traffic Safety Administration estimates that the risk of a crash for a driver who is texting is more than 23 times higher than an undistracted driver. President Obama has signed an executive order banning texting by federal employees while driving government vehicles. The Federal Motor Carrier Safety Administration issued regulatory guidance prohibiting commercial vehicle drivers from texting. Now OSHA has entered the fight against texting while driving. (Here and here.)
Once a hot employment law issue, drug testing has been cool for quite some time. Most courts, including the U.S. Supreme Court, have ruled that there’s nothing wrong with testing for unlawful drugs, particularly in the private sector. So, for two decades, an increasing number of employers do drug testing routinely. The types of drug testing most commonly done are pre-employment, for cause or reasonable suspicion (for example, when an employee is involved in an accident at work, seems to be under the influence of something, etc.), and random.
The recent hubbub over Virginia Thomas asking Anita Hill to apologize to her husband, Justice Clarence Thomas, got me to thinking. Almost 20 years had past since the original Hill/Thomas conflict. It’s still referred to occasionally, but it hasn’t been an issue for a long time. After the substantial media coverage of Mrs. Thomas request for an apology, Thomas’ long-time former girlfriend decided to come forward with allegations that her relationship with Thomas made her aware of Thomas’ addiction to pornography. More media coverage.
Much has been written on this subject, and I’m not sure I can add much. It seems that most people are outraged; want Juan Williams rehired; and accuse NPR of wrongful termination. A firing always gets people upset. The more public the firing of a well-known person, the greater the chance for outrage. It’s not like Juan Williams is the first person to ever be fired for subjective reasons.
No one was disciplined or fired in connection with the Christmas day (2009) attempted airplane bombing. No supervisor of Major Nidal Hasan (the Fort Hood shooter) was disciplined or fired in connection with their failure to act on clear signs that Hasan was a danger to himself and others. (Here) And now (here and here), no one is being disciplined or fired in connection with the suicide bombing in 2009 at an Afghan base, which killed seven CIA employees. It’s clear now that critical warnings about the suicide bomber simply weren’t reported to other CIA.
Under the Americans with Disabilities Act and the Americans with Disabilities Amendments Act, alcoholism is a disability. However, an alcoholic can be held to the same standards as other workers. He can be disciplined and even terminated if alcoholism interferes with work. Also, if an alcoholic employee comes to work while drinking or drunk, he can be fired.
I think it’s pretty clear that layoffs are going to continue and that our unemployment situation isn’t going to turn around anytime soon. In all likelihood, you will fire an employee, maybe several of the them, between now and the end of the year and on into next year. Things have changed a lot since the layoff craze began. Millions of people are sitting on edge every day. I’ve written as much as I can about why this should have never happened. As it continues, however, remember how stressed employees already are and how difficult being fired is, particularly in this economy. Instead of an email, memo, voicemail or some other impersonal contact, meet face-to-face with employees losing their jobs. You will need to give them something in writing. You can do that when you meet with them or give it to them later. Show them a little respect when they are on the verge of hearing what they’ve feared for months.
It takes more than an allegation of horseplay to establish sexual harassment, but sometimes, it’s difficult to distinguish between the two. In Cross v. Prairie Meadows Racetrack & Casino, Inc., the Eighth Circuit Court of Appeals considered whether alleged conduct was horseplay or sexual harassment.
All HR professionals know that a harassment claim must be investigated promptly and then appropriate action taken. In Moody v. East Mississippi State Hospital, decided by the U.S. District Court for the Southern District of Mississippi, an employee’s suit was dismissed, in part, for exactly that reason.
That’s an exaggeration. However, a recent incident involving a Rutgers University student demonstrates where social media and the Internet are taking us. College pranks at the beginning of the school year are common, particularly when freshmen are involved. These pranks have sometimes gone overboard, but with the Internet, a prank or an act of revenge can ravage the target.
The Family and Medical Leave Act raises legal issues that aren’t easy to address or are misunderstood. Consider the case of Harvey v. Waste Management of Illinois, No. 1:08-cv-06828, N.D. Ill. An employee had 11 points for unexcused absences. One more, and termination would occur. When he arrived at work on the day in question, he reported to two supervisor that he was sick. One of the supervisors noticed the employee was visibly ill and had trouble standing. It was decided that the employee should go home. The employee’s absence that day was considered unexcused, giving him 12 points. He was terminated.
Most of us were taught not to cheat when we were growing up. Not in school. Not at work. Not anywhere. But when one grows up and sees that cheating makes people rich, allows them to climb the corporate ladder, gives them the edge in a deal, or flat out allows them to dupe their friends, an important question arises. Is cheating really the rule rather than the exception?
I just returned from a wedding. One of our kids is getting married soon. So, vows have been on my mind lately. When an employee comes to work, there are rules and policies about what an employee will do and what an employer will do. Neither view them as vows, however. In a marriage, of course, vows can be words only. But they do make you think about an intended commitment.
This week’s tip involved an employer’s right to control the attire worn by employees. One other point that needs to be made involves dress and religion. That necessarily raises the matter of providing a reasonable accommodation to an employee to dress differently from other employees because of religious beliefs. (See a post I did last week on a different aspect of religious accommodation.)
An Ohio teacher is one of the latest employees to lose a job because of Facebook. It’s difficult to feel sorry for him. He should have known better. Apparently, like many other dupes, the teacher thought he was protected by some invisible shield and that he could get away with what everyone else couldn’t. He won’t be the last, no matter how much is written about the social media trap and no matter how well social media policies are written by employers.