Court recognizes “sabotage defense” in retaliation cases

Alvarez v. Royal Atlantic Developers, Inc. (11th Cir. 7/2/10) [pdf] asks this question: Can an employee who engages in protected activity pursue a retaliation claim if an employee slated for termination is fired sooner rather than later because of an exercise of protected activity? The court recognized that in certain circumstances, a legitimate and reasonable fear that an irate employee will use his or her position within the company to sabotage operations will justify termination, even if the company finds about the risk from the employee’s exercise of protected activity (such as a written complaint letter).

When Eliuth Alvarez got wind of her boss’s plans to replace her as the company’s controller, she wrote a letter of protest, complaining, among other things, about what she perceived to be discrimination against her based on her national origin. The company accelerated Alvarez’s termination because of the letter. It argued that it had to get rid of Alvarez when it did because the it feared that she might vindictively use her position as controller, with access to company computers and bank accounts, to sabotage operations.

The court recognized that in certain circumstances, such a fear is justified:

Suppose an employee with reason to believe that she has been discriminated against works in the control room of a nuclear power plant, and in her letter complaining of discrimination says that: “I’m mad as hell and I’m not going to take it anymore!” Or suppose she is a pilot and makes that statement in her letter of complaint. Or suppose she was not in a position to endanger the public, but her letter complaining of discrimination makes it clear that she is psychologically unstable and a danger to those who work around her. Discrimination laws do not require that their goals be pursued at the cost of jeopardizing innocent life or that employers tolerate a serious risk that employees in sensitive positions will sabotage the company’s operations. We are confident that if an employer removes an employee because of a reasonable, fact-based fear of sabotage or violence, the anti-retaliation provisions of our laws will not punish that employer for doing so.

In the specific circumstances of this case, however, the court was not persuaded that fear of sabotage motivated the employer’s decision to move up the termination:

Unless Royal Atlantic convinces a jury that it had a reasonable basis for fearing that unless it fired her immediately Alvarez would sabotage its operations or harm others, and there was no less drastic means of reliably preventing that other than firing her, Alvarez will be entitled to damages for the length of time she would have remained on the job if she had not sent the October 3, 2006 letter complaining of discrimination.

A few questions to consider if you a planning on using this defense in your next retaliation case:

• Did the employee’s position offer the opportunity to do real harm to the company?

• Did the employee make real threats against the company or anyone else, or provide a legitimate and reasonable basis to infer that he or she would disrupt operations?

• Did the company have no options other than termination (such as reassigning duties until a replacement could be hired) to protect itself from the feared sabotage?

• Did the employee’s continued employment pose a physical danger to other employees or the public?

The more of these questions to which you can answer yes, the better chance you will have to prevail on this defense.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #135

The post of the week belongs to Dan Schwartz at the Connecticut Employment Law Blog, who correctly identifies the major shortcomings with the National Sexual Harassment Registry recently launched by eBossWatch. It is a must read for anyone with a job.

Here’s the rest of what I read this week:

Litigation

• Depositions: Quit wasting time and money – from What About Clients?

• Does Your Firm Suffer from OCD? – from Stephanie Thomas’s The Proactive Employer

• FACTS? We (the jury) Don't Need No Stinking Facts. (Or, do we?) – from Deliberations

• Can Costs of Employment Arbitration Be Unfair to Employer? – from Paul Kirgis at ADR Prof Blog

• Metadata Scrubbing: Are Lawyers Finally Getting the Message? – from Ride The Lightning

• ABA Reports That Pro Se Representation Is Increasing, To The Litigants’ Detriment – from Cleveland Law Library Weblog

Discrimination & Harassment

• Harassment Case Against Steven Seagal Dismissed – from Lowering the Bar

• Novartis Enters Settlement Agreement for Remaining Members of Gender Bias Suit – from HR Hero’s Human Resources News

• Discrimination from the Bottom Up – from Richard Bales at Workplace Prof Blog

• EEOC Vice-Chair: What's Particularly Important for Employers? – from HR Daily Advisor

• Western District of Virginia Refuses to Dismiss Sexual Harassment Suit – from Laconic Law Blog

• Fitness-for-duty exam does not support a “regarded as disabled” claim – from Employment Law Matters

• 1st Circuit: Sexual desire is not a necessary element of a hostile work environment claim – from Work Matters

Wage & Hour

• 9th Cir: Jury Decides Employment Status – from Alaska Employment Law

• Department of Labor Examines New Approach for Enforcing Federal Employment Laws – from Wyatt Employment Law Report

• If you were the judge: Employee’s performance review referred to FMLA-covered absences – from HR Cafe

• Hot Times in HR – from Jim Brennan at Compensation Cafe

Social Media & Technology

• Do you text and drive? TeleNav survey shows about 1/4 of you do – from Smartphones and Cell Phones

• Be Careful What You Tweet – from Mark Toth’s Manpower Employment Blawg

• Social Media Policy – from NJ Hess Associates Blog / Patterns of Work

LeBron James

• On Leadership: Gilbert's Letter to LeBron - Leader or Looney? – from Kris Dunn, The HR Capitalist

• LeBron James’ Employment Background Check: He Stole Our Hearts – from Nick Fishman at the employeescreenIQ Blog

• Dan Gilbert and LeBron: Dealing with a departing employee – from Sindy Warren at the Warren & Hays Employment Law Blog

• The King Has No Clothes, Lebron’s Lessons For Work – from Workplace Fairness

• LeBron James? He’s Just a Glimpse at Your Employee of the Future – from TLNT

• LeBron Is Not Taking Less Money: A Quick Tax Overview – from Wills & Wealth

• LeBron James Faces ‘Reverse Paternity Suit’ Filed by Alleged Father – from Inside Opinions: Legal Blogs

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

In litigation lockdown, silence in golden

When I was 17 years old I was in a car accident, the details of which are unimportant to this story. What is important, though, is that a week later, I saw the woman I hit in the library, but she didn't see me. She was telling the librarian all about the accident, including how she wasn't that badly injured, but that her attorney told her to keep treating so that they could ask for more money in her lawsuit.

When your company is sued, you need to instruct your employees to exercise extreme caution in who says what around whom. I refer to it as "litigation lockdown." You may not know which of your employees are friends with the plaintiff. And, as my story illustrates, you cannot always control who overhears what is said. Especially in the workplace, little is private. Walls are often paper-thin. You never know who might be listening to what is intended to be private conversation.

Suffice it to say the woman I hit got much less money than she otherwise might have because I was in the right place at the right time. Don't end up over-paying in case because of similar carelessness.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Compliance and training key to victory in overtime lawsuit

A New York federal court recently dismissed a wage and hour collective action that sought unpaid overtime for “off-the-clock” work. The plaintiffs in Keubel v. Black & Decker claimed their employer maintained a policy of refusing to pay employees for any hours worked over 40 in a week. The court concluded that Black & Decker did not have to compensate employees for time worked that it did not know about or could not reasonably have known about. In support of its conclusion, the court relied upon Black & Decker’s wage and hour compliance and training, including written wage and hour and work time reporting policies, an anti-retaliation policy, an anonymous hotline for reporting violations, and regular training of all employees at all levels on wage and hour compliance:

It is undisputed that there was a company wide written policy concerning accurately recording all hours worked on ones time sheets, including overtime. Indeed, Black & Decker maintains a Code of Ethics that requires all employees to maintain the integrity of company records, explains the company’s commitment to obeying all laws expressly, including all wage and hour laws, and requiring employees to report what they believe to be violations of the Code of Ethics. As part of the effort to reinforce the Code of Ethics with all employees, Black & Decker mailed a copy of a brochure entitled “Doing What’s Right” to all employees on April 10, 2006, which summarized the critical aspects of the Code of Ethics.

Black & Decker sent out a series of e-mails to all current employees, which focused on topics addressing the Code of Ethics. In fact, an e-mail sent to all employees in January 2007 regarding accurate business records provided that all employees were required to “ensure that business records (for example time cards, travel and expense reports, invoices, and purchase orders) are honest, complete and not misleading.” It directed employees to “watch out for falsifying records or documents” and to beware of “[a]ssisting anyone with or going along with the creation of inaccurate or misleading records.” Employees were told, “If you are asked or aware of efforts to alter, destroy, conceal, falsify or not create business records, report this to your supervisor immediately[.]” In addition, employees were given an e-mail address and phone number by which they could make anonymous reports of violations. Significantly, no complaint was ever made by plaintiff through this process, nor was any anonymous complaint made regarding plaintiff’s supervisors. Based on these undisputed facts, plaintiff cannot meet his burden of proving that Black & Decker had actual or constructive knowledge of the hours he worked off-the-clock.

I’ve said it before, and in light of this case I’ll say it again—policies, training, and other compliance initiatives are crucial in preventing and ultimately winning litigation. KJK offers a proprietary (and complementary) 200-point HR and employment practices audit, which includes wage and hour compliance. This examination of your practices and procedures is the first step in making your organization litigation resistant.

[Hat tip: ELT, Inc. Blog, c/o Fair Labor Standards Act Law]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Eligibility for FMLA leave

FMLA leave continues to be one of the most confounding HR issues for employers. The first issue you often face is whether an employee seeking leave is eligible for the leave sought.

To be eligible for FMLA leave, an employee must meet two criteria:

1. The employee must have been employed for at least 12 months. These months, however, do not have to be consecutive and do not even have to immediately precede the request for FMLA leave. As long the employee has worked for the employer for a total of 12 months over any duration of time, this criteria is met.

2. The employee must have at least 1,250 hours of service during the previous 12-month period. “Hours of service” means hours worked. Thus, non-working time, paid or unpaid, such as vacations, holidays, furloughs, sick leave, other FMLA leave, and other time-off, do not count in the calculation of hours of service. This rule, however, has two key exceptions. First, an employee returning from fulfilling his or her National Guard or Reserve military obligation must be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the required 1,250 hours. Secondly, time that an employee would have worked but for an unlawful termination also counts towards the required 1,250 hours.

Because of these eligibility requirements, it is important to keep accurate records of work hours, even for exempt employees. If an employer does not keep an accurate record of hours worked, it will be presumed that the employee worked enough hours.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

If you can’t trust your son…. Multi-million dollar jury verdict for boss’s son’s theft of trade secrets

According to the Youngstown Business Journal, a federal court jury awarded Allied Erecting & Dismantling $3.046 million for claims that its president’s son, Mark Ramun, misappropriated trade secrets while working for a competitor, Genesis Equipment & Manufacturing. The article describes the dispute:

At the center of the dispute is a product Allied … developed…. Between 1992 and 2001, court papers say, Mark Ramun had access to “highly confidential proprietary information and documentation” related to the Allied MT while employed at the company. Those trade secrets, Allied alleged, were given to Genesis after the company hired the younger Ramun in 2003. Allied argued in its case that Mark Ramun kept nearly 15,000 documents that contained “a substantial array of highly confidential and proprietary information.”

There is a good lesson to be learned from this story. When there is money to be made, even those who you trust the most are apt to let you down. I don’t know what the relationship between senior and junior Ramuns was like (although I’m pretty sure they won’t be sharing a Thanksgiving turkey anytime soon). I am confident, however, that dad never for a second thought his son would divert confidential information to a competitor. Even those who you trust the most should be locked down with agreements, and diligently pursued when they breach your trust.
[Hat tip: Trade Secrets Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #134

At the bottom of the page you’ll notice a new feature I’m trying out – a Wibiya toolbar. It adds new functionality to the blog, including a revamped search engine, a widget for recent posts, and new ways to share content via Twitter and Facebook. Leave a comment (or tweet me) and let me know what you think.

Here’s what I read this week:

Discrimination

• When talking about disabilities, put people first – from Stephen Meyer at the HR Cafe

• Sometimes, the equal opportunity jerk defense prevails – from Sindy Warren at the Warren & Hays Employment Law Blog

• Disgruntlement – from Charles Sullivan at the Workplace Prof Blog

• Employee’s Fetus was Creating a Negative Energy Field in the Work Place – from Philip Miles’s Lawffice Space

• How To Screw Up A Termination Case And Pay Big Money! – from Minnesota Labor & Employment Law Blog

• Fitness-for-Duty Exams: When Can They Be Used? – from Mindy Chapman’s Case in Point

• Age is Just a State of Mind: At Least I Think So Because Today Is My Birthday – from Michael Haberman’s HR Observations

Social Media

• Indiana Jurors Instructed Not to “Talk” About the Case on Social Networking Sites – from Molly DiBianca’s Going Paperless

• How to Increase the Likelihood Employees will Follow Your Social Media Policy – from Defending The Digital Workplace

• Facebook Posts As Evidence? – from Lawyerist

Wage & Hour

• The Importance of Clear, Accurate Notices – from FMLA Insights

• Who’s The Bimbo Here? Another Class Action Focusing On Independent Contractor – from Wage & Hour - Development & Highlights

Miscellaneous

• The Top 10 Worst Fictional Bosses – from Alanah Throop (Hat tip to Bob Sutton’s Work Matters)

• Supreme Court recap: Employment Law – from LawMemo Employment Law Blog

• On the Road Again: What State Cell-Phone Bans Mean for Employers – from Adria Martinelli at the Delaware Employment Law Blog

• The Importance of Follow Through: More Lessons from Wal-Mart – from Stephanie Thomas’s The Proactive Employer

• Would You Want to Know About a Triple Murder Charge on an Employment Background Check? – from Nick Fishman at employeescreenIQ Blog

• “We Will Not Threaten to Kill You” – The Problem with NLRB Enforcement – from Work in Progress

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.