Wrongful Termination

Lying about Reasons for Separation – Don’t Do It

It’s a common dilemma for employers – what do you say to your staff to explain the sudden departure of an employee terminated for poor performance?

Tell the truth about why the employee was fired, and it can be seen as defamation, an invasion of privacy, or simply mean-spirited.

Say nothing, and co-workers may assume the worst or lose trust in the company.

So . . . what about saying it was the employee’s decision to leave, even if it wasn’t?

Well, that last explanation would be a lie – and courts may interpret such lying as a pretextual cover-up for discrimination.  That seems to be the lesson of McMullin v. Evangelical Services for the Aging T/D/B/A Wesley Enhanced Living, decided last month by Judge Savage of the U.S. District Court in Philadelphia.  In that case, the former CFO of Wesley Enhanced Living, Edward McMullin, sued for age discrimination and disability discrimination after his termination of employment at age 64 – one year after his hire.

Wesley argued that it terminated McMullin due to poor performance, including errors in financial reports.  McMullin claimed instead that the termination was because of his age and because he was perceived as disabled.  He had disclosed a chronic heart condition to his boss, CEO Jeff Petty, and McMullin also claimed that Petty had made comments about “making employees feel unwelcome so that they were encouraged to leave” when the employees were perceived as presenting a risk of costly workers’ comp claims or health insurance claims.

For Judge Savage, the decisive factor in allowing the claim to go forward to trial was that Petty sent an email to staff after McMullin’s termination announcing that McMullin “has decided to leave WEL effectively [sic] immediately.”  Stated the court, “Petty’s public explanation at the time of McMullin’s departure did not square with the reason he gave in this litigation for McMullin’s leaving.  McMullin claims that Petty misrepresented his termination to Wesley employees to conceal that he was fired for a discriminatory reason. . . A jury could infer discrimination if it concludes that Wesley’s explanation for terminating McMullin is not credible.”

In other words, Petty telling the staff that McMullin left voluntarily contradicted Petty’s later claim that McMullin was fired for poor performance, and based on that contradiction, a jury could conclude that Petty was covering up for unlawful discrimination.  Of course, Petty and Wesley likely would contend they announced that McMullin’s departure was voluntary so that he could “save face” and not be publicly embarrassed by his for-cause termination, but such a rationale apparently did not make it into the record.

Whether you agree with this decision or not, the lesson is simple – be very careful about statements relating to the reason for separation of an employee.  In our experience, these communications often make the difference as to whether an employer is sued or not sued for a termination.  Better to be vague and treat it as a private personnel matter, than to be dishonest. A simple statement that XYZ will be leaving the company effective October 1 will often suffice.  And if the employee wishes to treat it as a resignation to save face, ensure the parties sign a written agreement to do so.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Medical Marijuana Laws

Head Spinning from Marijuana Laws?

If you are experiencing a “Purple Haze” from the variety of state marijuana laws – at  least 29 states and counting — and trying to determine whether your employer must accommodate medical marijuana use, then we can help.

One of our best resources for evolving labor and employment laws, Wolters Kluwer, has just published a concise overview of the law in this area: “Smoky Lines: Whether to accommodate employees’ use of medicinal marijuana may now depend on state law.”

It notes important, safety-sensitive jobs in which accommodation is not required under federal law, covering employers in the trucking, aviation, maritime, railroad, transit and pipeline industries.  In addition, federal contractors subject to the Drug-Free Workplace Act must provide a drug-free workplace.

The rules get hazier at the state level, with only one state (Nevada) expressly requiring accommodation of medical marijuana.  In contrast, 16 states (including Pennsylvania and New Jersey) specifically provide that employers are not required to “accommodate” the use of medical marijuana during work hours or on work premises. Courts in some states, including Massachusetts, have held recently that employers do indeed have a duty to accommodate medical marijuana use, even if the statute is not clear on the point.

Suffice it to say that the law continues to evolve.  If you would like the full Wolters Kluwer report, please respond to me.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Pregnancy Discrimination Act

Pregnant Pause — Bosses’ Blasé Response Helps Discrimination Claim Survive

When Jennifer Martin emailed her boss at Tall Brown Dog, LLC, in 2015 to tell him that she was pregnant and needed to take a sick day, his response was less than congratulatory.

“OK,” he said without further comment, and then shifted directly into a discussion about his plan for her to increase her sales call activity.

Soon thereafter, she told the CEO of the company about her pregnancy, and he also responded as if channeling Spock.  He noted that “people have been pregnant here before,” and then “got very stoic, you know, and walked away,” according to Martin.

Such cold responses might be seen by some as simply the hyper-business-minded focus of small company managers or the social ineptitude of workaholics, but a federal judge in Michigan found that such non-supportive reactions could be interpreted by a jury as evidence of pregnancy discrimination against Martin, who was fired from her job days later.

Her bosses’ “reaction to Martin’s telling him that she was pregnant again (not congratulating her or acknowledging it in his response, and then moving on to discuss performance issues) could be viewed as suspect,” Judge Sean Cox wrote in his opinion in Martin v. Tall Brown Dog, LLC, denying summary judgment.

The case illustrates two basic truths:

  • Supervisors should never forget to be human beings in dealing with their subordinates – employees should be supported when they announce big news like pregnancies, or suffer health problems personally or in their families. Some supervisors feel paralyzed with fear about legal liability when issues like this arise.  Training from human resources or legal can help managers learn that complying with the law does not mean acting like unfeeling robots.
  • Pregnant employees are sympathetic plaintiffs. Woe to the company that has to explain to a jury why it was so harsh and unsupportive to an expectant mother.  It will be interesting to see whether this case settles or is tried to a verdict.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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sexual harassment, Sexual Harassment in the Workplace

Campus Sexual Harassment and Assault Guidelines Change Again

Federal guidelines for colleges and universities handling allegations of sexual misconduct on campus have changed again, with the Trump administration last week rescinding Title IX guidance issued under the Obama administration.

Notably, Education Secretary Betsy DeVos issued a seven-page set of questions and answers that allow schools to use a higher standard of proof in some cases, up from the “preponderance of the evidence” standard advocated by the Obama administration.  The guidance also encourages equal treatment, notice and access for the accused, which has not always occurred in the past.

This has been a hot area of dispute and litigation in recent years, and the roll-out of new guidelines is likely to stir the pot even further. Colleges, universities and student affinity groups can be expected to each push for review and reform as a result.   Although this is not employment law, the issues involved – including the need for prompt and fair investigations – are similar in the workplace.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Arbitration Clauses, Class Action Litigation

Class Action Waiver and Arbitration Clauses in Limbo

Mandatory arbitration clauses and class action waivers have not yet ripened into the panacea that employers had hoped.  While they can sometimes eliminate or reduce the expense and exposure of legal claims and even eliminate class actions, they also can spawn their own litigation as to enforceability, as three recent decisions illustrate.

First, federal Judge Joseph F. Leeson Jr. in Allentown, Pa., last week issued a stay of a Fair Labor Standards Act lawsuit for overtime pay against U-Haul International and its subsidiaries, pending the outcome of three cases on arbitrability and class action waivers now pending before the U.S. Supreme Court.  That will delay the U-Haul case for months, as the Supreme Court won’t hear oral argument on its cases until October 2, with decisions to follow later this year or next.

Second, a state court in New Jersey rejected a mandatory arbitration clause that was sent to employees electronically, requiring them to click on a box acknowledging that they had read and understood the policy.  Held the court in Dugan v. Best Buy Co. Inc., “Plaintiff’s mouse-click on the acknowledgment box did not manifest his assent to the policy, only that he read and understood the policy.”  Instead, the mouse-click should have said something like, “I agree.”

And third, the U.S. Court of Appeals for the Third Circuit (over federal courts in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands) ruled last month that under New Jersey law, in order for an arbitration clause to be enforceable as to statutory claims (such as employment discrimination or wage payment violations), the clause must (1) make clear that the employee is agreeing to arbitrate statutory claims, (2) make reference to the types of claims being waived, such as “workplace discrimination claims,” and (3) explain the difference between arbitration and litigation, including the waiver of the right to a jury trial.  Because the clause in Moon v. Breathless Inc. did not meet all three of these standards, the appellate court ruled it unenforceable.  And so the parties, after a year of litigation over arbitrability, can advance to litigation on the merits.  Fun.

So a word to the wise – check your arbitration clauses closely to be sure they are enforceable under both state and federal law.  Legal review is definitely recommended.  And watch for the Supreme Court’s decision soon on its arbitration trio – NLRB v. Murphy Oil USA, Epic Systems v. Lewis, and Ernst & Young v. Morris.  That could be a game changer.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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National Labor Relations Act

Robert Half ADR Case Half-Baked

Legal publications and some lawyers have touted a recent federal appeals court decision in Philadelphia as affirming the right of employers to mandate that employees both (1) waive their rights to participate in class action lawsuits, and (2) agree to arbitrate any employment issue individually, and not as part of a group of employees.

Unfortunately, this one ain’t over until the Supremes sing.

The preliminary reports about the decision by the U.S. Court of Appeals for the Third Circuit, Opalinski v. Robert Half International, Inc., ignore that the court in that case expressly noted that the plaintiffs failed to raise an argument that might have determined the case differently.

In particular, the plaintiffs – former staffing managers at personnel placement firm Robert Half – never raised arguments that their binding arbitration agreements violated the National Labor Relations Act (NLRA).  This omission is a head-scratcher, as the National Labor Relations Board and several appeals courts have held that an employee agreement that deprives an employee of the right to bring his or her claims against the employer “collectively” with other employees violates the NLRA protection of “concerted activity” with other employees relating to the terms and conditions of employment.

As we wrote previously, this issue is now before the U.S. Supreme Court and should be decided later this year.  So, the Third Circuit’s Opalinski decision, rather than staking out a reliable marker as to employee rights in the circuit states of Pennsylvania, New Jersey and Delaware, really is simply a reflection of what happens when plaintiffs’ lawyers fail to make an important legal argument.

As a result, we do not recommend that employers or employees make any decisions or changes in their employment agreements based on Opalinski.  Instead, make like Diana Ross and wait for the Supremes to chime in.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Uncategorized

Tesla Electrifies with Public Response to Employee Lawsuit


As a former journalist, I have long questioned the wisdom of employers taking a “no comment” posture in response to press coverage of employee lawsuits and claims. Instead of stonewalling, I recommend considering a measured, legally reviewed response that denies the wrongdoing, discloses positive facts that can’t be refuted, and protects the company’s image, internally and externally, without unnecessarily fanning the flames of the controversy or attacking the plaintiff-employee.

Tesla, the Silicon Valley electric car manufacturer and never a company to follow the traditional approach, put the pedal to the metal when it responded to claims of a hostile and abusive work environment by an ex-employee of its factory in Fremont, California.  The company issued a 964-word press release defending its actions and its “good working environment,” laying out its history of the matter, and noting the evidence against the employee’s claims, including (a) text messages by the employee using the same language he complained about, and (b) his lawyer demanding a “large payment” to avoid a lawsuit.

Be careful, Tesla employees — you won’t hear those electric cars coming until they’re right on top of you.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Uncategorized

Two-thirds of Federal Contractors Violate Wage-Hour Laws

Senator Elizabeth Warren (D-Mass.) recently released a federal report showing that 66 of the federal government’s 100 largest contractors have been caught breaking federal wage and hour laws.

This data is not inconsistent with our practice experience, in which a properly focused audit can find a wage and hour violation at almost any workplace.

Don’t get caught with your overtime flank exposed.  Conduct an internal audit of your company’s workplace payroll practices before a federal or state labor audit does something far more painful.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Uncategorized

The $51.6 Million Verdict – Putting the Fear of God in Age Discrimination

If you are having a hard time getting decision-makers to focus on a single-plaintiff employment case, you might want to make copies of the verdict sheet in Braden v. Lockheed Martin Corp., decided earlier this year in federal court in Camden, N.J.

In that age discrimination lawsuit, involving a reduction in force that impacted Robert Braden, five of 110 employees with his title were terminated, and all of them were over 50. Braden, 66, had worked at Lockheed since 1995 and was not given any reason for his selection.

The jury awarded him $520,000 in lost earnings, $520,000 in emotional distress, $520,000 in liquidated damages under the Age Discrimination in Employment Act, and – hold your hat — $50,000,000 in punitive damages, after four days of trial and four hours of deliberation.  Guess who’s going to Disneyland?

Yes, the decision is under appeal, but that is no reason not to use it to get everyone’s attention – this is serious business, and potentially very expensive.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Age Discrimination in Employment Act

‘Apprentisaurus’ Age Claim Is Now Extinct

A court decision out of Illinois involved a slew of age-discriminatory comments from co-workers.

Several co-workers called Jeffrey Kawczynski the “apprentisaurus” and one wrote the epithet on his work helmet, Kawczynski said.  Others referred to him as “old man” and “old Jeff,” and even used crude, demeaning comments like “dog nuts” and “pig pen.” And one supervisor asked him his age.

Kawczynski claimed to be tortured to the point of depression by this treatment, and stopped work as a result.  But the comments were not enough for him to survive summary judgment on his age discrimination and hostile work environment claim against F.E. Moran, Inc., his employer.

Why not?  Let us be good students and count the ways, which help explain why every unpleasant work experience does not rise to the level of a viable lawsuit.

First, most of the comments were by co-workers and not supervisors, and stopped years before his employment ended.

Second, he never reported the comments to his union representatives or company human resources, and admits that the comments did not affect his work and eventually stopped.

Third, the supervisor who asked about his age was not a decision-maker at the time his termination ended.

Fourth, Kawczynski admittedly chose not to return to work in 2013 – he was not fired, even if he anticipated termination coming at some point in the future.  As such, he did not suffer an adverse employment action.

Fifth, and finally, many of the hostile comments did not suggest animus against him based on age – “pig pen” and “dog nuts” certainly are not desirable nicknames, but they also are not ageist.

So . . . before panicking about the next claim of outrageous language at work, think about the lessons from “Apprentisaurus,” break down the details alleged, and don’t go “dog nuts.”

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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