The two-day mistake that sent retaliation claim to trial

Two days.

That's the entire gap between John Shoemaker asking McKesson Corp. for FMLA leave and McKesson telling him he was fired. 

A federal judge just said that two-day gap alone survives summary judgment.

Yes, it's your laptop. No, you shouldn't necessarily sue to get it back.

Your former employee sues you for discrimination and retaliation.

You respond by … suing her over a laptop.

That's the latest wrinkle in the employment lawsuit between former Fox 2 Detroit anchor Taryn Asher and WJBK-TV. Asher alleges sex discrimination and retaliation. The station denies those allegations and says it terminated her because of unprofessional workplace behavior.

But tucked into the station's response is something else: a counterclaim seeking the return of a company laptop that Asher allegedly kept after her employment ended.

According to the station, it repeatedly asked for the laptop, even sending Asher a prepaid shipping label and box. According to Asher's lawyer, she kept it because it contains information relevant to her lawsuit, and her attorneys tried to negotiate a protocol for returning it while protecting privileged and other information.

I'm not taking sides on who is right about this particular laptop. But the dispute raises an important question for any employer defending an employment lawsuit:

Just because you can countersue a former employee over unreturned company property, does that mean you should?

A labor union retaliated against its own union employee. The irony writes itself.

"Do as I say, not as I do."

That may as well have been the management philosophy at United Food & Commercial Workers Local 7.

Earlier this week, an NLRB administrative law judge found that UFCW Local 7 unlawfully suspended and fired one of its own employees because of his union activity and because he testified against the union in an NLRB proceeding.

Yes, you read that correctly.

A labor union retaliated against an employee for engaging in protected union activity.

You can't make this stuff up.

Why your noncompete agreement could become "Exhibit A" in a discrimination lawsuit.

For years, employers have treated noncompete agreements as just another item in the onboarding paperwork. Hand over the offer letter, the handbook acknowledgment, the tax forms, and somewhere in the stack sits a restrictive covenant that employees sign without much thought.

The recently settled lawsuit against Boston Beer Company serves as a reminder that noncompetes rarely stay confined to contract disputes. They can become Exhibit A in a much larger employment-law battle.

The case was brought by several former sales employees who alleged gender discrimination, retaliation, hostile work environment, and unlawful noncompete practices. According to the complaint, Boston Beer required broad noncompete agreements for sales employees and aggressively enforced them against departing workers. The plaintiffs claimed those restrictions trapped employees in jobs they wanted to leave, prevented them from pursuing opportunities with competitors, and amplified the effects of alleged discrimination and retaliation.

Boston Beer denied the allegations. The parties have now settled.

The settlement itself doesn't establish liability. But the allegations offer several important lessons for employers.

Litigation is a strategy, not a reflex

When an employee walks out the door holding your company's stuff hostage, you have two problems: (1) your property, and (2) the story you're creating for the inevitable lawsuit.

Rezene v. Haribo is a case study in how fast this can go sideways. The employee allegedly kept a company Mercedes, phone, laptop, and other items while severance talks dragged on. The employer's lawyers got involved to retrieve the property. After multiple written demands, they contacted police. Officers showed up at the employee's home. Cue the next act: claims for defamation, emotional distress, discrimination, and retalation.

Years of federal litigation followed. Haribo ultimately won. Some claims died on summary judgment. The rest died at trial. But that's not the point.

A lesson on retaliation from the State of the Union

A lawmaker sits silently during a high-profile speech. He holds up a simple sign protesting a racially offensive depiction of a former president by the current president. No shouting. No profanity. Just a message: this is wrong.

Within minutes, he's escorted out.

Now take off the Capitol dome and put that scene in your workplace.

When does $5,000,000 not equal $5,000,000?

Elizabeth Graham worked as a benefits generalist in the human resources department of Bristol Hospice Holdings. She filed (and later withdrew) an EEOC charge alleging age and sex harassment. A couple of months later, during an acquisition integration, the company accused her of blowing off a training assignment (and then lying about it). The VP of HR terminated her — allegedly for insubordination and falsifying what happened.

A federal court jury just awarded her $5,000,000 in punitive damages, on top of $75,000 in non-economic compensatory damages. That punitive award will never last.

Can you spot the difference between coincidence and retaliation?

Have you heard about the small toy store owners in St. Paul, MN, who complained about ICE on their local news. They went on camera. They criticized ICE. Loudly. Publicly. Three hours later, two plainclothes ICE agents reportedly walked into the store and served a Notice of Inspection—an I-9 audit request.

And we're supposed to believe that timing is just… coincidence?

This is what retaliation looks like.

Filing an EEOC charge doesn’t automatically buy an employee job immunity

Some believe that once an employee complains to the EEOC, discipline must stop. Supervisors must tread lightly. Performance problems must be ignored.

The 4th Circuit just reminded everyone that's not how Title VII works.

In Andrews v. DeJoy, the court affirmed summary judgment for the Postal Service on a retaliation claim brought by a clerk who had a long history of documented performance problems — both before and after she filed an EEOC complaint.

After loudly clashing with her supervisor and being escorted from the building by police, the employee, a clerk, filed an EEOC charge. After her post-suspension return to work, management continued documenting attendance issues, insubordination, and performance deficiencies, eventually issuing a notice of removal (later reduced to a suspension through arbitration).

She sued, claiming retaliation. She lost.

4 solid steps to win your disability discrimination/reasonable accommodation case

The 6th Circuit just delivered an opinion that reinforces two lessons employers should already know: accommodations require clarity and documentation, and timecard falsification is a litigation killer.

Energy Harbor Nuclear Corp. reassigned a maintenance supervisor with nearly 30 years of service to 12-hour night shifts. He complained that the schedule was worsening his Type 2 diabetes, specifically that the night shift was "killing" him. Management told him to provide medical documentation if he needed an accommodation. Upon his presentation of a doctor's note, the company moved him to day shift as requested.

Then came the problem. The company audited his outage time entries against objective badge-swipe data from the plant's protected area. The audit revealed discrepancies in 21 of 26 entries, including 10 overstated by more than 30 minutes. Management interviewed him (with a witness present), reviewed security data, escalated the issue to HR, and a separate internal review team conducted its own investigation. The company fired him for falsifying time records.

He sued for disability discrimination, failure to accommodate, and retaliation.

Microagressions as an adverse action

A "microaggression" is a subtle, often unintentional comment or action that conveys bias or discrimination against a marginalized group. For example, asking a person of color, "How did you get this job?" telling a colleague with an accent, "Your English is so good," or scheduling team-building activities at bars, knowing some employees don't drink for religious reasons.

In the right circumstances, however, microaggressions can also amount to an adverse action that supports a workplace retaliation claim.

Consider the recent case of Uchitel v. Solid Waste Services. 

Lessons from a recent retaliation case

Dr. Carla Campbell-Jackson, a Black woman with 30 flawless years working at State Farm, found herself out of a job after raising concerns about systemic discrimination within the company against minority customers and employees. When she spoke up, she claimed her stellar performance reviews dropped, and soon after, State Farm terminated her for allegedly violating company policy by sending an email with sensitive information defending her performance.

Campbell-Jackson believed her termination wasn't about the email—it was retaliation for her complaints.

She sued, and the 6th Circuit revived her case. 

The two main reasons why employers shouldn’t retaliate

Social media giant TikTok is in some legal hot water for its alleged mistreatment of its employees. According to NPR, two Black employees allege that TikTok fired them after they complained to HR about racial discrimination within the company.

Getting your termination ducks in a row

Just because someone engages in protected conduct doesn't mean you can't fire them. It just means you better have your ducks in a row when you do so.

Case in point: the saga of Nicole Oeuvray and the Art Directors Guild. Oeuvray, who served as the guild's accountant for 16 years, had been one of leaders of a campaign to organize the guild's employees into a labor union.

There is no such thing as free speech at work

"Having successfully settled my case with ESPN/Disney, I have decided to leave so I can exercise my first amendment rights more freely."

-vs-

"ESPN and Sage Steele have mutually agreed to part ways. We thank her for her many contributions over the years."

Those are two vastly different statements published by (now former) ESPN anchor Sage Steele and her former employer.

ESPN's statement is standard vanilla for a company announcing someone's departure.

Sage Steele's statement, however, is borderline dangerous because it continues to foster a myth that private sector employees enjoy First Amendment rights at work.

Steele's lawsuit against ESPN followed her removal from the air two years ago after a series of controversial public comments about vaccine mandates ("to mandate … is … sick … and … scary"); female sports reporters and sexual harassment (women need to "be responsible" and it "isn't just on players and athletes and coaches to act a certain way"); and former President Barack Obama's racial identity ("I think that's fascinating considering his Black dad was nowhere to be found, but his White mom and grandma raised him").

Let me say this one more time, loudly, for the people in the back:

THERE IS NO SUCH THING AS FREE SPEECH AT WORK.

The First Amendment to which Sage Steele refers prohibits the government from restricting speech, not private employers — "Congress shall make no law … abridging the freedom of speech…."

Yes, there are some limited exceptions to the lack of workplace free speech rights — government workers; complaints about discrimination; protected concerted activity under the National Labor Relations Act; and the few states that grant speech rights to all employees.

But otherwise, no one should operate under the mistaken impression that they can flap their gums about whatever they want without workplace consequences. People like Sage Steele who continue to perpetrate the fallacy of workplace free speech are doing everyone (including themselves) a grave disservice.

Here are 11.25 million reasons to settle a lawsuit

Before I will bless a client's decision to terminate an employee, I always ask this question: "Tell me about the demographics — race, sex, age, known disability, etc. Did they complain about something at work and when? If I go through your personnel records, will I find someone outside of the to-be-terminated employee's protected class whom you've treated better?"

Here's why I ask that question.

Please don’t use “fit” to justify an employment decision, no matter what the 4th Circuit just said

"You're not a good fit." 

This statement could mean a lot of things. 

It could be innocuous description of a host of performance issues. 

But it could also mean—

"You're not white."

"You're not male."

"You're not Christian enough." 

"You're too Brown. 

"You're too old."

"You're too disabled." 

With this background, consider Lashley v. Spartanburg Methodist College, which involved a teacher suing her former employer after it did not renew her contact because they "were not a good fit for each other." The teacher claimed "good fit" was pretext for retaliation based on her prior request for a disability reasonable accommodation.

What can you do about employee mass protests? (Hint: not much.)

The 25 employees of Mela Kitchen at Jack’s Hard Cider recently walked off the job in protest after owner Donald Hoffman created a new drink menu of cocktails with racially inspired named such as "The Caucasian" and "The Negro."

MSN quotes one employee, Emily Kate Hessler, on why she and her co-workers decided to engage in the mass protest.

Despite days of efforts from upper management trying to halt this cocktail and it's name, Friday comes and it's time to reveal this weekends special. I made a formal complaint to upper management and notified them that if the name isn't changed most of the scheduled staff will be walking. An email was sent to Donald informing him of our plan and his reaction was explosive.

“Entitlement to FMLA leave” is not a prerequisite to an FMLA retaliation claim

The 6th Circuit revived the FMLA retaliation claim of an attorney fired immediately after she requested unpaid leave to care for her two-year old child at the start of the Covid-19 pandemic.

In mid-March 2020, Polina Milman, an attorney working at Fieger & Fieger PC, requested permission first for unpaid time off, and then to work remotely, to care for her two-year-old son who was exhibiting Covid symptoms and was already vulnerable because of a previous bout of RSV. The firm initially granted her WFH request. On her second remote workday, however, she received a termination letter, stating that she had refused to work because her "child had a cold" and "it was clear [she] had quit."

Bank properly terminates misbehaving employee despite FMLA leave, 6th Circuit holds

In 2017, a series of personal adversities, including probation for an incident with a gun and an ex-girlfriend, cocaine use, and a DUI arrest, ultimately culminated in a stroke for Mark Snyder, a financial director for U.S. Bank. When he returned in 2018 for his FMLA leave following his stroke, he suffered from residual physical and behavioral conditions, such as depression, agitation, and anxiety. Employees began to complain to management about his combative and confrontational behavior. After an investigation, the Bank told Snyder that further issues could result in other disciplinary actions, including termination of employment.

On June 4, 2018, Snyder had yet another confrontation with his supervisor, Johnnie Carrol, and his assistant Marcia Kleinhenz. As a result, Carroll emailed HR, explaining that Snyder's behavior "is consistent with his issues of attempting to intimidate people" and "I no longer think [Snyder's] situation is redeemable and feel I need to act." Carroll made the decision to terminate Snyder's employment that evening.

That same night, Snyder suffered a nervous breakdown and was hospitalized. The following day, he requested FMLA leave, which the Bank granted. A couple weeks later, however, Carroll and HR contacted Snyder to inform him that Bank was terminating his employment effective at the end of his FMLA leave.

The 6th Circuit had little difficulty affirming the dismissal of Snyder's FMLA claims.

• On his FMLA interference claim, the Court concluded that the June 4 confrontation was the "point of no return" for Carroll, and that he made the decision to terminated Snyder before learning of his nervous breakdown and hospitalization later that night.

• On his FMLA retaliation claim, the Court disagreed that evidence that Snyder had been a good employee before he took FMLA leave for his stroke supported a theory that the Bank schemed to push him out of the company after he took his that initial FMLA leave. To the contrary, the Court held, "Snyder cites no evidence supporting his theory that it was the FMLA leave, not the numerous complaints into his behavior, that was the reason for his termination, and "the only evidence he has supporting his theory is timing, which by itself is insufficient."

Many employers have a paralyzing fear of terminating an employee who has engaged in protected conduct, no matter the circumstances. Snyder demonstrates that this can be unfounded. The potential of a lawsuit certainly ups the ante when terminating an employee who has, for example, taken or requested FMLA leave. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they have a legitimate reason, have taken the right steps, and have the proper documentation.