Many savvy employers know that a neutral reference policy – in which you confirm a former employee’s position, dates of employment and (maybe) salary – is typically the safest choice for avoiding a defamation claim. After all, if you don’t say much (and what you say is not negative), you can’t be sued. Of course, if you choose to say more and what you say (even if unflattering) is true, then you can also avoid liability because truth is an absolute defense to a defamation claim. But what one employer learned, to its dismay, is that you can still be sued, even if what you say is truthful.
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What, Did the Judge Draft Ezekiel Elliott for his Fantasy Football Team?
Last week we had our firm’s Fantasy Football draft. Ezekiel Elliott went at the end of Round 2, behind usual top running back picks David Johnson and La’Veon Bell, but also behind lesser runners Melvin Gordon and Jordan Howard. Everyone knows that Zeke would have been a top five draft choice had he not already been suspended by NFL Commissioner Roger Goodell (aka the most hated man in Foxboro, MA), whose decision was then upheld by a labor arbitrator. I’m kicking myself for taking Atlanta’s running back Devonta Freeman instead of Elliott. Why, you say?
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Do Employers Have to Provide Accommodations for Medical Marijuana Use?
The consensus amongst employers in the recent past has been that, because federal law categorizes marijuana as an illegal substance, employers could take adverse action against individuals who tested positive for marijuana (refusing to hire, disciplining or terminating). In that same vein, because marijuana was illegal under federal law, the thought was that an employer had no obligation to provide accommodations to workplace policies, such as drug testing policies, to individuals who tested positive because of medical marijuana use. (Except in Nevada, because it is the only U.S. jurisdiction whose statute requires accommodations for medical marijuana users). However, a recent case, Barbuto v. Advantage Sales & Mktg., LLC, has seemingly caused the traditional line of thinking to go up in smoke.
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Extraordinary Employee Excuses
I am often surprised (and highly amused) by the excuses offered by employees to justify their misconduct. And by the fact that they’re often willing to litigate over them! A recent example of this can be found in the case of Alamillo v. BNSF Railway Co.
The employee worked an “extra board” schedule, meaning that he would report to work when called, rather than the usual 5-day a week regular schedule. An extra board employee who fails to answer three phone calls within a 15-minute period is marked as having “missed a call.” Under the company’s policy, five missed calls within a 12-month period may result in termination.
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Don’t Access My Emails And Tell Me It’s Legal
Departing employees do a lot of dumb things with email. Sometimes they use an employer’s systems, which they know are regularly monitored, to ask their attorneys how to set up claims against their employers. Sometimes, after they email a slew of confidential or trade secret information to themselves on their way out the door, they click delete on the sent messages only to leave all of the evidence in the “deleted” folder. In today’s blog, we ask employers to leave it to departing employees to do dumb stuff with email.
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The Government Seems Confused About Class Action Waivers
The issue of whether employees can be required to sign arbitration agreements that contain waivers of their right to file a class or collective action over employment-related disputes is one that has drawn much attention – and much conflict – in recent years. The Obama administration, it seemed, steadfastly opposed such waivers. Under the Trump administration, which (regardless of your politics) has had a slow and bumpy transition of federal agency leadership, the agencies do not appear to be operating from the same playbook – as evidenced by recent actions by the National Labor Relations Board, (NLRB), the Department of Justice (DOJ), and the Consumer Financial Protection Board (CFPB).
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Be Careful About Waiving the Attorney-Client Privilege
Of course clients call me for advice on how to handle sticky situations with employees – that’s a major part of my job. And they know that our communications are subject to the sacred attorney-client privilege. But what companies need to understand is that this privilege might be waived by its corporate management, including officers and directors. It’s fine if the client knowingly chooses to waive it, with a full understanding of the consequences of such waiver – but, unfortunately, it can also be waived unintentionally. A recent case provides an excellent warning to companies (and their attorneys) about this.
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Maternity/Parental Leave Policies – A Trap for the Unwary
This past week, the American Civil Liberties Union announced that it was filing a charge of discrimination with the Equal Employment Opportunity Commission on behalf of a male J. P. Morgan employee because the company denies fathers paid parental leave on the same terms as mothers. Now this is an issue that has been percolating for awhile – and one that is not necessarily on the radar screens of smaller employers, many of whom may offer maternity – but not paternity – leave benefits to their employees.
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“Go Back to Your Country” Is Not Evidence of National Origin Discrimination?
As you may know, I am a die-hard management-side attorney. Typically, I cheer on federal courts that rule in favor of employers – but there are the rare occasions where I think the court gets it unquestionably, unutterably wrong. And the U.S. Court of Appeals for the 8th Circuit’s decision in Abdel-Ghani v. Target Corp. is one of these.
In this case, the plaintiff, a Palestinian immigrant, was employed by a third party, MarketSource, to work at a mobile phone sales kiosk at a Target store. He only worked there for about two months before he was terminated. During his employment, he did not get along with the MarketSource sales manager at that store, and at one point she supposedly told him, “Go back home, go to your country.” In addition, the plaintiff alleged that Target employees (from behind shelves) called him names such as camel jockey, Muslim, Arab, terrorist, and sand nigger, and that this occurred at least ten times during the two months of his employment. Also, he overheard another employee say, “[y]ou should be rounded up in one place and nuke[d].” He was terminated, ostensibly for issues with the sales manager, Target employees and guests. He then sued MarketSource and Target under Title VII for subjecting him to a hostile work environment and national origin discrimination, among other things.
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FMLA Is Not A “Get Out Of Jail Free” Card!
I know that many employers feel hamstrung by the Family and Medical Leave Act’s statutory protections for employees. They can’t do much about the significant negative effects on business operations because of an employee’s unscheduled intermittent FMLA leave, for example. And FMLA abuse is sometimes (if not often) suspected but hard to prove. Many employees seem to view FMLA as a “get out of jail free” card that insulates them from discipline for bad behavior that is related in any way to FMLA – and a literal example of this can be found in the recent case of Capps v. Mondelez Global LLC.
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