Wait, an employer can’t fire an employee on FMLA leave caught on Facebook on vacation?

Actual firing Facebook photo

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.

So, what do you do?

Promotion after protected activity dooms employees retaliation claim

What does unlawful retaliation not look like? Burton v. Board of Regents of Univ. of Wisc. Sys. (7th Cir. 3/17/17) offers a good example.

The adverse action standard for retaliation is low (but not this low)

The legal standard for an “adverse action” to support a claim for workplace retaliation is pretty low. How low? According to the Supreme Court, an adverse action sufficient to support a claim for retaliation is any action that would dissuade a reasonable worker from complaining about discrimination.

But, is does it reach this low? In Bien-Aime v. Equity Residential (S.D.N.Y. 2/22/17), a federal court concluded that two managers’ general rudeness towards the plaintiff, which started only after the plaintiff filed a civil rights complaint, stood as a sufficient adverse action to support his retaliation claim.

The 2nd nominee for the “worst employer of 2017” is … the recorded retaliator

Our next nominee for the Worst Employer of 2017 comes from my very own backyard—Cleveland Hopkins International Airport.

Here in Northeast Ohio  take our snow removal very seriously, especially (we hope) at the airport, where an icy or snow-covered runway could cause disaster. In 2015, airfield manager Abdul Malik-Al complained to his bosses about his belief that the airport did not sufficiently support its winter-weather crews. Those comments led to the FAA levying a $200,000 fine against the airport.

OSHA suggests employer best practices for anti-retaliation programs

The Occupational Safety and Health Administration has published recommended best practices to protect from retaliation employees who report workplace safety or other concerns under any of the 22 statutes OSHA enforces.

The document, entitled, Recommended Practices for Anti-Retaliation Programs [pdf], outlines five key elements of an effective anti-retaliation program:

When a self-fondling supervisor earns the nickname “Mr. Bojangles,” it’s not going to end well

The EEOC reports that it has sued Goodwill Industries of the East Bay Area for sexual harassment and disability discrimination, following allegations made by disabled female nightshift janitors against their supervisor. The allegations are … disturbing:

When it’s better to be lucky than good

Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.

What employers can learn from EEOC's new Enforcement Guidance on Retaliation

Yesterday, the EEOC published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue. After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

Ohio Supreme Court sides with workers’ comp fraud

Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. 

It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.

Not so fast.

Employment at-will is dead

Last week, I suggested that the “FMLA is not a personnel-file eraser.”

One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.

In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.

http://dilbert.com/strip/2015-09-08

FMLA does not excuse poor performance

Earlier in the week, I discussed Tilley v. Kalamazoo, in which an employer took one on the chin for disciplining an employee for not doing his job while on an FMLA leave. That case, however, does not mean that the FMLA excuses prior poor job performance, or that an employer must ignore or excuse an employee’s performance deficiencies once an employee takes FMLA leave. Indeed, as Checa v. Drexel University [pdf] points out, it’s just the opposite.

6th Circuit says illegal retaliation doesn’t meet threshold for constructive discharge. Wait, what?!

Henry v. Abbott Laboratories (6/10/16) [pdf] is what I would call a curious case, and one that I plan to liberally use any time I’m defending a case in which claims both of discrimination/retaliation and constructive discharge are asserted.

Video killed the lawsuit star

If a picture tells a thousand words, then how many does a video tell?

Last week, the 6th Circuit affirmed the dismissal of a retaliation claim based on a video of an altercation that the plaintiff claimed she had not started.

Ohio court muddles the issue of counterclaims-as-retaliation

Friedrich Nietzsche once said, “It is impossible to suffer without making someone pay for it; every complaint already contains revenge.” Litigation, however, is no place for revenge. The question I am most asked by clients after they are sued, besides, “How much is this going to cost me,” and “After I win I can collect my attorneys’ fees from that bastard,” is, “How do I countersue that bastard for _________?”

A recent Ohio appellate decision will, unfortunately, muddle the answer to this question.

7th Circuit delivers employers an early Christmas gift in EEOC severance agreement case

In EEOC v. CVS Pharmacy, Inc., the EEOC challenged what I have previously described as several garden-variety, boilerplate provisions in a severance agreement. I’ve also previously predicted that a win for the EEOC in this case would be ruinous for employers.

Late last week, the 7th Circuit affirmed the decision of the district court, which had dismissed the EEOC’s lawsuit based on its failure to conciliate with CVS prior to filing suit.

And, the 7th Circuit agreed, affirming the case on those grounds. But, the 7th Circuit also went further, and offered hope to employers this federal courts will not stand for the folly the EEOC is trying to put forth by filing this type of case.

What can go wrong when co-workers date? A lot.

True confession time. I watch The Voice. It’s not like it’s at the top of my DVR, but, my remote always seem to stop on NBC between 8 and 10 on Monday and Tuesday nights. (My pick to win this season: Amy Vachal). So, when I heard that Team Shelton and Team Gwen had formed one team outside of work, I thought, “What a great opportunity to write a blog post on office romances.” (This is how the mind of blogger works).

What can do wrong with office romances? As it turns out, a lot. So, in the spirit of The Voice, here’s 10 reasons co-workers shouldn’t turn their chairs for each other.

Is digital “shunning” illegal retaliation?

Wired tells the story of an Australian tribunal, which ruled that an employee was illegally bullied at work, in part because a co-worker had unfriended her on Facebook.

Transfer this case to America, and assume that the employee is claiming retaliation based on the unfriending. Supposed Employee-A complains to HR that Employee-B is sexually harassing her, and, as soon as Employee-B finds out about the complaint, he unfriends Employee-A on Facebook. Does Employee-A have a claim for retaliation based on the unfriending?

The answer is likely no.

As a matter of law, an adverse action sufficient to support a claim for retaliation merely must be an action that would dissuade a reasonable worker from complaining about discrimination. Yet, the Supreme Court has stated that the adversity to support a claim for retaliation must be “material”, and that petty slights, minor annoyances, or a simple lack of good manners normally will not count:

We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience…. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….

A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.

Thus, an ostracism or shunning from a social network—one that serves no work-related purpose other than fostering congeniality among co-workers—likely should not support a claim for retaliation.

OSHA’s new burden of proof is a big burden for employers

Today, I’m going to talk about burdens of proof, a topic that might seem dry, but is vitally important to employers.

Last month I provided some insight into the 22 different federal statutes that protect whistleblowing employees from retaliation. The Occupational Safety and Health Administration administers the enforcement of each of these statutes’ anti-retaliation provisions. It’s now a whole lot easier for OSHA to enforce these laws against companies alleged of retaliation.

Earlier this year, OSHA published a memorandum entitled, Clarification of the Investigative Standard for OSHA Whistleblower Investigations. This “clarification” is actually a loosening of OSHA’s investigatory standard. Now, all OSHA needs to pursue a retaliation claim against an employer is “reasonable cause to believe that a violation occurred.”

What does “reasonable cause” mean? It means that all OSHA needs to take a whistleblower claim to hearing is a “belief that a reasonable judge could rule in favor of the complainant … that a violation occurred.” This “reasonable cause” finding requires significantly less evidence as would be required at trial to establish unlawful retaliation by the requisite preponderance of the evidence.

If you think of these burdens of proof as scales, the preponderance of the evidence necessary to carry the day at trial is sufficient evidence to tip the scale past the 50/50 mark. OSHA’s new “reasonable cause” standard, however, requires much less than this 50-percent-plus showing, maybe as little as enough to merely nudge the scales in the direction of that halfway point.

As OSHA’s summarizes:

Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred. Rather, when OSHA believes, after considering all of the evidence gathered during the investigation, that the complainant could succeed in proving a violation, it is appropriate to issue a merit finding under the statutes that provide for litigation before an ALJ….

Needless to say, this loosening of the proof standard has the potential to be significant. Time will tell if if it will increase the number of whistleblower complaints filed by employees. I am confident, however, that under this new standard, employers will be facing more hearings and trials on federal whistleblower claims, and, further, that the stakes in this litigation has increased significantly.

Retaliation alphabet-soup

Employers typically think of retaliation in terms of the big employment statutes: Title VII, the ADEA, the ADA, the FMLA, and the FLSA. Yet, there exist dozens of federal statutes that protect employees from retaliation in a variety of federally regulated industries.

Indeed, just yesterday, Cleveland.com reported that Abdul-Malik Ali, the former head of airfield maintenance at Cleveland Hopkins International Airport, filed a complaint with the Department of Labor against Hopkins and the City of Cleveland, alleging they unfairly demoted him for blowing the whistle on Hopkins for having fewer than the required number of workers on runways last winter.

Ali says that on Feb. 19, the day after he told FAA inspector Michael Stephens about  understaffing, he was removed from his 15-year post as manager of field maintenance by Airport Director Ricky Smith.

Ali said he was transferred to the job of “assistant to the deputy commissioner,” instructed to clear out his office, moved to what he called a “mop closet” behind the cab booking stand on the terminal baggage level at Hopkins and given “make-work” assignments such as counting trashcans.

If true, I’d say the airport has issues. It also makes me feel less that good about flights we took last winter.

Employers that operate in a federally regulated industry need to be aware of the alphabet-soup of statutes that could give rise to a potential retaliation or whistleblowing claim. Thankfully, the Department of Labor provides a list, handily collated at (where else?) http://www.whistleblowers.gov/:

• Affordable Care Act: Protects employees who report violations of any provision of title I of the ACA, including but not limited to discrimination based on an individual's receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer's failure to rebate a portion of an excess premium

• Asbestos Hazard Emergency Response Act: Protects employees who report violations of the law relating to asbestos in public or private non-profit elementary and secondary school systems

• Clean Air Act: Prohibits retaliation against any employee who reports violations regarding air emissions from area, stationary, and mobile sources

• Comprehensive Environmental Response Compensation and Liability Act: Prohibits retaliation against any employee who reports alleged violations relating to cleanup of hazardous waste sites, as well as accidents, spills, and other emergency releases of pollutants and contaminants

• Consumer Financial Protection Act: Employees are protected for blowing the whistle on reasonably perceived violations of any provision of the Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any other provision of law that is subject to the jurisdiction of the Bureau of Consumer Financial, Protection, or any rule, order, standard, or prohibition prescribed by the Bureau

• Consumer Product Safety Improvement Act: Protects employees of of consumer product manufacturers, importers, distributors, retailers, and private labelers who report to their employer, the federal government, or a state attorney general reasonably perceived violations of any statute or regulation within the jurisdiction of the Consumer Safety Product Safety Commission

• Energy Reorganization Act of 1974: Prohibits retaliation against any employee who reports violations or refuses to engage in violations of the ERA or the Atomic Energy Act. Protected employees include employees of operators, contractors and subcontractors of nuclear power plants licensed by the Nuclear Regulatory Commission, and employees of contractors working with the Department of Energy under a contract pursuant to the Atomic Energy Act

• FDA Food Safety Modernization Act: Protects employees of food manufacturers, distributors, packers, and transporters from reporting a violation of the Food, Drug, and Cosmetic Act, or a regulation promulgated under the Act, and employees who refuse to participate in a practice that violates the Act

• Federal Railroad Safety Act: Protects employees of railroad carriers and their contractors and subcontractors who report a hazardous safety or security condition, a violation of any federal law or regulation relating to railroad safety or security, or the abuse of public funds appropriated for railroad safety, in addition to employees who refuse to work when confronted by a hazardous safety or security condition

• Federal Water Pollution Control Act: Prohibits retaliation against any employee who reports alleged violations relating to discharge of pollutants into water

• International Safe Container Act: Protects employees involved in international shipping who report to the Coast Guard the existence of an unsafe intermodal cargo container or another violation of the Act

• Moving Ahead for Progress in the 21st Century Act: Prohibits retaliation by motor vehicle manufacturers, part suppliers, and dealerships against employees for providing information to the employer or the U.S. Department of Transportation about motor vehicle defects, noncompliance, or violations of the notification or reporting requirements enforced by the National Highway Traffic Safety Administration or for engaging in related protected activities

• National Transit Systems Security Act: Protects transit employees who report a hazardous safety or security condition, a violation of any federal law relating to public transportation agency safety, or the abuse of federal grants or other public funds appropriated for public transportation, and also protects public transit employees who refuse to work when confronted by a hazardous safety or security condition or refuse to violate a federal law related to public transportation safety

• Occupational Safety and Health Act of 1970: Protects employees who exercise a variety of rights guaranteed under the Act, such as filing a safety and health complaint with OSHA, participating in an inspection, etc.

• Pipeline Safety Improvement Act: Protects employees who report violations of federal laws related to pipeline safety and security or who refuse to violate such laws

• Safe Drinking Water Act: Prohibits retaliation against any employee who reports alleged violations relating to any waters actually or potentially designated for drinking

• Sarbanes-Oxley Act of 2002: Protects employees of certain companies who report alleged mail, wire, bank or securities fraud; violations of the SEC rules and regulations; or violation of federal laws related to fraud against shareholders. The Act covers employees of publicly traded companies and their subsidiaries, as well as employees of nationally-recognized statistical rating organizations

• Seaman’s Protection Act: Protects employees who report to the Coast Guard or another federal agency a violation of a maritime safety law or regulation, and also seamen who refuse to work when they reasonably believe an assigned task would result in serious injury or impairment of health to themselves, other seamen, or the public

• Solid Waste Disposal Act: Prohibits retaliation against any employee who reports alleged violations relating to the disposal of solid and hazardous waste (including medical waste) at active and future facilities

• Surface Mining Control and Reclamation Act: Protects truck drivers and other employees who refuse to violate regulations related to the safety of commercial motor vehicles or who report violations of those regulations

• Toxic Substances Control Act: Prohibits retaliation against any employee who reports alleged violations relating to industrial chemicals produced or imported into the United States

• Wendell H. Ford Aviation Investment and Reform Act of the 21st Century: Protects employees of air carriers and contractors and subcontractors of air carriers who, among other things, report violations of laws related to aviation safety

Insubordination or protected conduct? 6th Circuit has the answer.

Is there a line that separates an employee’s insubordinate outburst from an expression of protected conduct? Yazdian v. ConMed Endoscopic Technologies, Inc. (6th Cir. 7/14/15) suggest that the answer may be “no”.

Reza Yazdian, a former territory manager for ConMed, believed that he was being singled out because of his national origin or religion. He chose, however, to express that belief to management in a less-than-professional manner, which included becoming combative during a disciplinary meeting.

The 6th Circuit concluded that it should be up to a jury to decide whether, despite Yazdian’s “combative” style, the company nevertheless terminated him because of his expression of protected conduct.

Yazdian cites as direct evidence of retaliation that Sweatt [his manager] specifically referenced Yazdian’s protected statements as examples of insubordination. When Sweatt provided ConMed with examples of Yazdian’s communication problems and “unwillingness to accept and apply constructive coaching,” Sweatt cited Yazdian’s hostile-work-environment and discrimination comments as examples. Sweatt described Yazdian’s claim that Sweatt was “creating a hostile working environment for [him],” as “unprofessional” and “totally unacceptable.” Sweatt cited the incident when Yazdian said to Sweatt, “I guess you don’t like my race either” as an example of Yazdian’s alleged “unwillingness to accept and apply constructive coaching.” And, crucially, Sweatt testified that he made the decision to fire Yazdian immediately after this phone call in which Yazdian said the following: (1) that Yazdian was going to file a lawsuit, (2) that Sweatt was creating a hostile work environment, and (3) that Yazdian would respond to the warning letter with charges.… [T]hese documents are direct evidence from which a reasonable jury could conclude that Sweatt believed Yazdian’s protected activity constituted insubordination, and therefore that Sweatt terminated Yazdian because of the protected statements that Yazdian had made.

Employee have a right to express protected conduct without reprisal, just as employers have the right to discipline or terminate insubordinate employees. When the expression of protected conduct swallows the alleged insubordination, you should expect most courts to do as the 6th Circuit did here, and side with the employee. Act accordingly, and be careful not to confuse protected expressions of opposition to alleged discriminatory employment practices with insubordination.