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.

What does an employer have to do to lose $366 million?!

$366 million dollars. That's how much a jury awarded Jennifer Harris, a Black sales manager targeted and then fired by FedEx after she complained to human resources that her boss discriminatorily demoted her. 

That's $1.16 million in compensatory damages and $365 million in punitive damages. 

The trial judge recently rejected FedEx's motion to reduce the punitive verdict as excessive and a violation of its due process rights.

“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.

Ex-Starbucks manager throws employer under the bus for its alleged anti-union retaliation

"I didn't want to do illegal stuff. I've worked my entire life to build up a career of integrity, and I was not going to allow Starbucks to take that from me."

That's what David Almond, the former manager of several of Buffalo-area Starbucks told an NLRB administrative law judge earlier year, according to information received by Bloomberg pursuant to its Freedom of Information Act request.

What "illegal stuff?" 

“Pretextual investigation” dooms employer’s defense to ex-employee’s retaliation claim

An employee, Joseph Canada, uses his cell phone to solicit sex from prostitutes during work hours. His employer, Samuel Grossi & Sons, discovers the text messages and terminates the employee for violating its policies against "[u]nlawful conduct which adversely affects the employee's relationship on his/her job, fellow employees, supervisor and/or damages the Company's property, reputation or goodwill in the community" and "[i]mmoral or indecent conduct."

The employee then sues for retaliation, claiming that the termination was in retaliation for filing another lawsuit the month prior claiming discrimination and FMLA violations.

The district court dismissed the retaliation claim, stating that "[n]o reasonable jury could conclude that defendant's proffered nondiscriminatory and nonretaliatory reason for terminating plaintiff's employment was pretextual."

On appeal, however, the 3rd Circuit concluded that the reason for the termination is irrelevant if the investigation that leads to the discovery of the evidence that causes the termination was pretexual in and of itself.

How broad is potential liability for retaliation? THIS broad.

In 2016, Tom Pettay sued his former employer, DeVry University, for age discrimination. The trial court dismissed Pettay's lawsuit on summary judgment. Following that dismissal, the employer filed a motion asking the trial court to award them $4,004.39 for the cost of deposition transcripts used in support of the summary judgment motion. While Pettay's appeal of the court's award of costs was pending, the Ohio Supreme Court held that a prevailing party cannot recover the costs of deposition transcripts. 

As a result, Pettay again sued DeVry (or, more accurately, its successor in interest, Cogswell Education), claiming that it retaliated against him by pursuing a frivolous motion for the costs of the deposition transcripts. 

Court dismisses employees’ race discrimination claims against Whole Foods based on prohibition of BLM masks

A group of Black and non-Black Whole Foods employees claimed that their employer unlawfully discriminated against them because of their race and their association with people because of their race based on their employer's prohibition of the wearing of "Black Lives Matter" face masks starting in June 2020 following the death of George Floyd.

I’m begging you, STOP firing union organizers

Brenda Garcia led union efforts at Chipotle as one of its employees. Or, rather, she was one of its employees until last week, when the restaurant chain fired her. 

Employers, I'm begging you, please stop firing union organizers. It's illegal. It's also a terrible union avoidance strategy because you're playing right into their hands.

Jury awards $450,000 to employee fired over unwanted birthday party

Kevin Berling, a 10-month employee of Gravity Diagnostics, made a simple request of the manager of his office —"Please don't throw me a birthday party; I have an anxiety disorder."

What happened next spiraled into a lawsuit that lasted more than two and half years and ended late last month with a $450,000 verdict for the employee.

Brian Flores burns down the house in his lawsuit against the NFL … and makes himself unemployable in the process

If you haven't read the lawsuit Brian Flores filed against the NFL and three of its franchises, you should. It reads like a law school employment law exam question. It has allegations of systemic and endemic racial discrimination, fraud, bribery, and Bill Belichek inadvertently providing the smoking gun text message.

This lawsuit will likely bring much-needed change to the NFL's hiring practices. It will also likely mark the end of Flores' coaching career. I'd be shocked if he ever coaches again.

Whistleblowing and self-help discovery: lessons from Frances Haugen, the Facebook whistleblower

"Can she do that?" That was the question my wife asked me as we watched last night's interview of Frances Haugen, the Facebook whistleblower, on 60 Minutes.

The "that" was the revelation that Haugen stole a trove of confidential documents just prior to quitting her job to support her allegations against her employer.

"It depends," I told my wife, offering the stock lawyer answer to most questions.

6th Circuit applies False Claim Act’s anti-retaliation protections to ex-employees

In the history of this blog's 3,603 posts, I've never written about the False Claim Act. If you've been waiting with bated breath for me to fix this omission, today's your lucky day, thanks to United States ex rel. David Felten, M.D., Ph.D. v. William Beaumont Hosp. (6th Cir. 3/31/21). Before diving into the Felten case, let's first take a 61-word peek at the False Claims Act and to what it applies.

The False Claims Act is a federal statute that imposes liability on people and companies that defraud the federal government, and further, relevant to Felten, permits private citizens (which the law calls "relators") to file lawsuits (known as qui tam claims) on behalf of the government and protects relators from retaliation when the lawsuit they are filing is against their employer.

At issue in Felten is whether the FCA's anti-retaliation protections only cover current employees, or whether they also extend to an employer's former employee who blows the whistle by filing a qui tam suit.

Even though this employer won its ex-employee’s retaliation lawsuit, PLEASE don’t do what it did

Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.

For example, consider Allen v. Ambu-Stat.

Just because you’re out on FMLA does not grant you a license to threaten your co-workers

“Hey pussy … I’m going to get you for what you did.”

Ordinarily, if one employee confronts another employee with a threat like the one above, you’d consider it grounds for termination. Maurice Darby, however, claimed that the fact that he made the threat while out on FMLA leave constituted grounds for retaliation after his employer terminated him.

No, your FMLA does not grant you license to threaten your coworkers

After being harassed by co-workers, Paul Ellis took to Facebook to air his grievances publicly. Among his comments was one that could be perceived as a threat violence: “he’s gonna have an accident on the dock.” When another employee brought a printout of the post to their employer, FedEx, an investigation began. During that investigation. Ellis admitted that one could perceive that comment as a threat. As a result, FedEx fired him.

Prior to his termination, Ellis frequently took leave under the FMLA to receive treatments for his chronic back pain and to take care of his sick mother. He alleged that FedEx retaliated against him for his use of FMLA leave by terminating him.

It is an inexcusable sin for an employer NOT to have an anti-discrimination policy

There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided yesterday by the 6th Circuit), FedEx learned this lesson the hard way.

Ohio lawmakers seek to expand the protections of the Ohio Whistleblower Act

Laws protecting whistle-blowers from retaliation have a long and storied history in the annals of American law. Indeed, according to The Personal Toll of Whistleblowing, recently published in The New Yorker*, these laws date back 241 years to the American Revolution and the Second Continental Congress:

The first documented whistle-blowing case in the United States took place in 1777, not long after the signing of the Declaration of Independence, when a group of naval officers, including Samuel Shaw and Richard Marven, witnessed their commanding officer torturing British prisoners of war. When they reported the misconduct to Congress, the commanding officer charged Shaw and Marven with libel, and both men were jailed. The following year, Congress passed a law protecting whistle-blowers, and Shaw and Marven were acquitted by a jury.