Tuesday, August 26, 2008

Why Should You Acurately Document Performance Problems?

Today's decision of the court of appeals in Chicago points to the benefit of accurately documenting performance difficulities of employees, especially new employees.

As city in southern Illinois hired a jailer who, after some months on the job, got a mixed performance review. She did somethings OK, but the employer documented her slow work and lack of attention to detail were areas for improvement. She later complained about sexual harassment by a co-worker, her complaints were investigated, but her performance continued to lag. The employer called a meeting with her to discuss the performance. She brought a tape recorder to the meeting to surreptitiously record it, which under Illinois law constitutes a felony (unlike Tennessee law). The employer found out, had her house searched and the employee arrested when the tape was found.

The employee initially argued that she recorded the meeting to get evidence for her harassment suit and because the city admitted it had her arrested for illegally taping the meeting, the city effective admitted retaliating against her. The court turned this argument away as resting "upon a transparently overbroad view of the scope of the statute’s protection" because Title VII "does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination."

The employee next argued that the city criticized her performance after she complained, which showed, supposedly, bias against her. The court rejected this as well because the documented evidence was that the post-complaints performance criticisms were consistent with the critical evaluations made before she ever complained. That by itself, the court said, undermined any inference that her complaint and termination were related or that the employer's critiques of her performance were not genuine.

Employers hear the mantra of documentation alot and this case shows why. It is well understood that even valid complaints about an employee's performance can nevertheless be seen as pretextual if the employer ignores them until after the employee complains. In representing employers, we argue the employer's honest belief is what matters. It is hard to make this point effectively when the employer overlooks conduct that it would have otherwise had every right to criticize. It also mattered, in this case, that the employer did not "heap" more criticism on the employee after she complained. It did the smart thing and kept documenting the same performance difficulties noted before she complained.

Of course, this case also shows that an employer does not have to ignore, post-complaint misconduct at pain of being held liable for a retaliation claim. The employee's violation of the Illinois eavesdropping statute hadn't happened before her harassment complaint so, without evidence that this was dishonest, there was no reason the employer had to ignore this violation simply it arose after the employee complained.

Had the city employer not documented the performance issues before the employee complained about harassing conduct, the case might have come out differently. What may be also helpful to note is that the documentation was not elaborate. It simply listed the areas where the employee needed improvement. It takes something, in other words, but it doesn't take much.

Sunday, August 24, 2008

Hostile Environments, Confederate Flags and Women in Combat

Most private employers don't find themselve on the receiving end of suits that implicate the first amendment. Public employers, schools and universities, face it constantly, having to balance the risk of disruption (or non-compliance with harassment laws) with not impinging on the protected speech of employees or students. The task is a daunting one.

Last week, a federal court jury in Tennessee deadlocked on whether Anderson County High School's prohibition on wearing clothing depicting the confederal flag violated a students constitutional rights. Shortly afterwards, the Sixth Circuit issued a decision holding William Blount High School did not violate students' rights when it prohibited the wearing of a confederate flag. Each county argued its policies were geared toward prohibiting disruptions in schools, presented some evidence that racial disruptions had occurred in the past. Both pointed out that their policies meant that the confederate flag itself was not singled out for banishment but that the disruptive clothing policy applied to any clothing that was disruptive, such as Malcolm X shirts to use an example both courts cited. The Sixth Circuit held the school did not have to show that the wearing of confederate flag insignia would actually cause a disruption, it needed to show its decision reasonably forecast that it would cause a substantial disruption.

Compare these decisions to a court decision which struck down Temple University's sexual harassment policy because it infringed the free speech rights of a student who wanted to be able to discuss women in combat and in the military. The university policy prohibited any "expressive, visual or physical conduct” when that conduct “has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . has the purpose or effect of creating an intimidating, hostile, or offensive environment.”

The problem with this, the court held, was that it let the university impose sanctions for speech based solely on the motive of the speaker and without testing whether the speech is likely to cause a material disruption to the school environment. "Absent any requirement akin to a showing of severity or pervasiveness—that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work—the policy provides no shelter for core protected speech."

Some of the difference in results can be explained by the fact that courts provide grade schools with substantially more flexibility than in a university setting, a policy that permits the more stringent enforcement of discipline among pre-adults. My point is that these cases are a harbinger for public employers, some of whom also face complex decisions about employee expression in the workplace. Public employers have a significant ability to prevent disruption in the workplace so it may be they can have a facially neutral policy that prohibits the wearing of clothing that would likely cause disruption. How an employer would show what would cause a disruption remains to be seen, as courts will require some showing of a disruption.

But public employee speech in the workplace that does not pose a risk of disruption poses a more difficult problem. In that circumstance, a public employer could probably not point to its harassment policies as providing a justification for prohibiting employee speech. Speech alone, one would think, could only rarely rise to the level being severe or pervasive enough to be actionable. But then how does one deal with racial epithets? Any employer, public or private that does take reasonable steps to prevent that kind of speech risks being held liable for racial harassment. Of course, it is the rare case where speech constitutes the only basis for a harassment complaint, and non-expressive conduct motivated by a prohibited characteristic is not protected speech.

I don’t envy the public employer who must sort this out.

Friday, August 15, 2008

Employers May Not Retaliate Against Employees Who Take FMLA Leave

This won't be earth-shattering. It will eliminate any doubts (that most employers didn't have in the first place).

A Dollar General store in Tennessee fired a computer programmer who had a serious health condition. The project on which she was working was behind schedule and missing deadlines. Shortly after she requested FMLA leave, Dollar General began imposing discipline on her. A few weeks later, she was fired. She said at trial that when she was terminated, a supervisor told her "because of your health, I don't think you can do the job." The jury found Dollar General had fired the employee because she took FMLA leave.

On appeal, Dollar General argued that the FMLA does not prohibit employers from terminating employees who have taken FMLA leave. Read literally, Dollar General was correct. The relevant statutory language simplys says that it is unlawful to discriminate against someone "for
for opposing any practice made unlawful by this subchapter." An individual who requests FMLA leave exercises her rights under the FMLA but doesn't necessarily do so by saying the employer is engaging in an "unlawful" practice. Of course, the DOL FMLA regulations say: "employers cannot use the taking of FMLA leave as a negative factor in employment actions" but regulations cannot increase the rights that Congress chose not to add.

The problem is, as the court recognized, that the right to take FMLA would be all but meaningless if an employer could use that leave against the employee. Courts have, moreover, been willing to imply a retaliation prohibition even where the statute does not expressly prohibit retaliation, as I explained in a prior post. It is hardly surprising, therefore, for the Sixth Circuit to read the FMLA as protecting employees because they had exercised FMLA rights. (Given these other decisions, I find some of the Sixth Circuit's reasoning unnecessary but I can't quibble with the results.)

The decision isn't going to come as a shock to most employers in Tennessee. Still, there is merit to reminding Tennessee employers that they should exercise caution and use some common sense when imposing discipline on employees who have taken FMLA leave.

Monday, August 11, 2008

Arbitration of USERRA Claims

For the first time in a while, courts are having the opportunity to construe the terms of the Uniformed Services Employment and Reemployment Rights Act of 1994. Because USERRA has a structure somewhat different than the more common federal discrimination statutes it poses increase risks and correspondingly greater obligations on employers who have employees on military leave.

Answering one of the open questions, the Sixth Circuit today held in this decision that the terms of USERRA did not clearly prohibit arbitration of USERRA claims. That means that general arbitration agreements can lawfully mandate arbitration of USERRA and other claims.

Drafting a valid arbitration clause is not simple so employers should consult with counsel before deciding to impose one on employees. Courts have invalidated arbitration clauses for a number of reasons such as because they slanted too much in the employer's favor, imposed a disproportionate cost on the employee to invoke it, or did not permit the arbitrator to award full relief authorized by the statute. Properly drafted, however, an arbitration clause will be enforced.

Friday, August 8, 2008

Proving an Unlawful Motive under ERISA's Retaliation Provision

I cut my employment law teeth by defending against retaliation claims so I have a special affinity for those that raise unusual issues. A recent First Circuit decision (a court that rules on decisions from New England and Puerto Rico) caught my eye and gives me an opportunity to talk about two important points employers should heed. (This court does not set precedent for Tennessee cases so employers, as always, should not blindly assume the decision will protect them.)

Employers are often surprised by the number of federal retaliation statutes. I don’t have an exact count but can safely say there are over 30 different statutes which prohibit retaliation by certain employers for certain conduct engaged in by employees. These days, employees can engage in “protected activity” in a variety of ways. Some ways are familiar (making complaints of unlawful discrimination) others are new (complaints by airline employees about airline safety) others are industry specific (complaints about corporate misconduct for publicly traded companies or nuclear energy safety) or conduct specific (complaints about unlawful environmental pollution). Thanks to CBOCS West v. Humphries (which I discussed here), we know that one of the oldest statutes which prohibits retaliation was passed after the civil war. The oldest that expressly prohibits retaliation is, of course, the National Labor Relations Act, where the protected conduct involves unionizing.

One of the less familiar retaliation provisions appears in the Employee Retirement Income Security Act (ERISA). This statute, as most know, governs benefits and the theory behind this retaliation provision is that, what good would it be for an employee to seek or obtain a benefit if an employer could turn around and make life difficult on the employee as a result. So, ERISA includes a retaliation statute that prohibits employers from retaliating against an employee because the employee sought or obtained benefits. It also prohibits an employer from “interfering” with an employee’s right to a benefit.

To keep things from getting completely out of hand, however, courts uniformly interpret the ERISA retaliation statute to require more than simply a termination following an application for or an award of ERISA benefits. The employee must, as in almost any retaliation claim, show the employer intended to harm (in the employment sense) an employee because the employee had or requested ERISA governed benefits. The classic example would be where an employer terminates an employee because the employee has caused or about to cause an increase in the company’s health care expenses. See Dewitt v. Proctor Hospital, 517 F.3d 944 (7th Cir. 2008) (this may also violate the Americans with Disabilities Act if the employee has a disability).

Despite its age, ERISA retaliation claims are still just unusual enough that some employers will still act without thinking about the consequences. A recent decision, however, provides employers with something of an encouragement to think through the consequences of their actions.

Parametric Technology notified a number of employees that they were going to be laid off. One, a software engineer, shortly before the termination date, notified the PT that he wanted to take short term disability benefits. HR, thinking the claim “odd” (their words) consulted with in-house counsel before forwarding the claim to the insurer who ultimately approved the disability benefit. The employee then looked for work, getting hired by a consulting company that was to provide employees to PT. Thus, PT saw the software engineer back working at its facility (though now a subcontractor employee) when it thought he was still receiving disability benefits and fired him for double-dipping.

The software engineer argued the double-dipping motive wasn’t the real reason for his persona non-grata status pointing to the fact that HR treated his request for benefits with skepticism and to their consulting with counsel before processing the claim paperwork. The court didn’t buy it: employer skepticism (alone) is ordinarily not unlawful because “ERISA does not impose upon an employer a duty to buy a pig in a poke, and caution is a far cry from discriminatory animus.”

And consulting with counsel before proceeding, the court said, was anything but discriminatory. “A personnel officer faced with a novel situation hardly can be faulted for opting to secure the advice of counsel concerning that situation.” And, "the prudent step of seeking a lawyer's advice is not the stuff on which a finding of discriminatory intent can be premised."
At the risk of sounding self serving, there is a lesson here for employers who are faced with an employee who complains or requests any contractually agreed upon or statutorily mandated right. It is better to review the situation carefully, consult with counsel if doubts remain, before proceeding precipitously.

Saturday, August 2, 2008

Preventing Workplace Violence

Last Sunday's tragedy here in Knoxville then Friday’s workplace shooting outside of Philadelphia brought to mind an extremely unpleasant topic. Simply put, all employers should address violence in the workplace in the hope that at least one tragedy can be prevented. There may be no sure way to prevent all workplace murders (any more than there is a way to prevent all murders) but I thought I might mention that there are warning signs employers can use to identify a potential for workplace violence.

The issue is too complex for one (or even several blog posts). Besides, there are a number of well-written publications that better address it. (One is “Threats Pending Fuses Burning: Managing Workplace Violence” by Dennis A. Davis, whom I heard speak on the subject at Kramer Rayson’s Labor and Employment Seminar in 2006.)

While mass murders are more likely to make the news, workplace violence is not just about them. The FBI, in its “Workplace Violence, Issues in Response” reminds us that mass murders are relatively infrequent (despite their publicity) and it is “the threats, harassment, bullying, domestic violence, stalking, emotional abuse, intimidation, and other forms of behavior and physical violence that, if left unchecked, may result in more serious violent behavior.”

Not surprisingly, there is a good bit of similarity between the FBI publication and Dennis Davis’ book. Most incidences of workplace violence, Dennis said, don’t happen without warning to someone even if it is not one of the intended victims. Dennis breaks down workplace violence into three “stages” graded by their increasing potential for violence. Each stage has recognizable characteristics. I won’t try to condense Dennis’ book (or his talk) here but it is an eye-opener. OSHA and the CDC (with NIOSH) have also published Internet sources that will help an employer address and reduce the risk of workplace violence.

What surprises most people when they hear about workplace violence prevention is the link between an individual’s violent tendencies and some of the more “mundane” issues that arise in the workplace. Dennis and the FBI make this point repeatedly. The FBI: “Prevention programs that do not consider harassment in all forms and threats are unlikely to be effective.” Or as Dennis’ book says, “violence starts with thoughts and moves first to language then to actions.”

The FBI recommends employers act before a tragedy by developing a “workplace violence strategy.” Support it from the “top”, tailor it to your workplace, training managers and employees to spot, report and prevent some of the behaviors that might lead to violence, and conduct practice exercises. All employers should have a prevention program that compliments the harassment policy and provides procedures for investigating, assessing and addressing violent behavior. One thing I like about the FBI’s approach is the way it describes the “zero tolerance” policy an employer should adopt. Rather than imposing a "zero tolerance" mandatory penalty approach, employers should make it clear that zero tolerance means: “no threatening or violent behavior is acceptable and no violent incident will be ignored."

My description of these texts grossly oversimplifies the issues. The FBI report and Dennis’ book cover the issues and concerns in detail. I simply wanted to mention that there are resources out there that might prevent another tragedy.