Learning from Others' Mistakes - Things Tennessee Employers can Learn from the Obama Administration's Handling of the Shirley Sherrod Matter

One of the primary reasons I started this blog was to help employers learn from others' mistakes.  It struck me in listening to the media coverage about Shirley Sherrod that the administration has given employers a great example of how not to go about firing someone.  No matter what your political affiliation, every employer can learn from the mistakes the Obama Administration made.

Of course, I'm only going on what I read or heard from the news media.  Some facts are debated (but I won't let a few debated facts stand in the way of good lesson).  Sherrod, of course, was the Agriculture Department official who was summarily fired when the Administration learned, presumably through the news media, that she had given a speech in which she admitted to discriminating against a white farmer.  As the story goes, the video of Sherrod's speech had been selectively edited to make her remarks appear more damning than they actually were.  Sherrod's entire speech showed she was not, in fact, biased but was relaying a story about overcoming bias.

First, as I understand it, Sherrod was fired without being given any opportunity to tell her side of the story.  She claims she was driving when she got a call from a deputy secretary in her department who told her he need her immediate resignation.  She then had to pull over the car and type her resignation letter into her Blackberry.  While there are times when an employer need not hear the employee's side of the story, those times are exceptionally rare.  The far better course, as I explained a while back, is to listen to the employee's version of events before making a decision.

Second, it seems reasonably clear that senior officials in the Agriculture Department decided to fire Sherrod without conducting any investigation, much less a meaningful one.  Sherrod maintains (as any employee would) that she told her supervisors to listen to the entire speech she gave but they ignored her.  The lesson here is, of course, that before an employer fires an employee (especially for  misconduct), the employer should conduct a pretty extensive investigation.  Knee jerk reactions, as I have explained, are likely to cause legal problems for employers.

Third, the Agriculture Department is in the midst of a lawsuit brought by African American farmers who alleged that they suffered racial discrimination in USDA farm loan programs.  According to the Congressional Research Service, the suit alleges that the USDA had discriminated against black farmers from 1983 to 1997 when they applied for federal financial help and again by failing to investigate allegations of discrimination.  One of Sherrod's contentions has been that the participants in this pattern of discriminatory conduct were never discipline for it but that she was fired for only one "offense." Let's suppose, for the moment, that this is true and that Sherrod had confessed to inappropriate conduct toward white farmers.  In meeting out discipline for misconduct, employers should always consider whether the current discipline is consistent with past discipline.

The interesting question this poses, however, is what does an employer do when it wants to change course and no longer follow a past practice?  The Agriculture Department, so the Congressional Research Service says, has been trying to address the discrimination issues for years.  It is not too much of a stretch to think that the Agriculture Department has tried in more recent years to prevent discrimination in loan applications.

To use a less serious example, suppose an employer realizes one day that its relaxed internet use policy is causing problems so it decides to prohibit all personal use of the Internet on work computers.  Absent a union, an employer is not ineluctably bound by its past practices (especially when they are unlawful ones).   But an employer that wants to make a "clean break" with its past practices should do so by unmistakably communicating that policy change to all affected employees.

Before the Sherrod matter, I would never have dreamed I would ever need to write a blog post about such an obvious subject.  But apparently there are employers, even big ones, who make some pretty stupid mistakes.

COBRA - In Case You Were Wondering

Unless you have been under a rock, you'll have noticed that last week, the President signed the Unemployment Compensation Extension Act of 2010.  In the past, similar bills also included an extension of the COBRA premium assistance program.  That did not happen this time.

The Department of Labor has updated its COBRA webpage to clarify that the COBRA premium reduction under ARRA is not available for individuals who experience involuntary terminations after May 31, 2010.

DOL issues Fact Sheet on Break Time for Nursing Mothers under the FLSA

From time to time, the Wage and Hour Division issues "fact sheets" on certain topics.  The latest topic addresses the provision in the Health Care Reform bill requiring employer to provide a "reasonable break time for an employee to express breast milk" for up to 1 year after the child's birth. The Wage and Hour Fact sheet does not go into too much detail.

The Fact Sheet states: "Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk."  So exempt employees need not, as a matter of federal law, be provided with breaks.  That is not clear from the statutory language.

Tennessee law makes no such distinction but the federal provision has some teeth for non-exempt employees because it is an amendment to the minimum wage provision in the Fair Labor Standards Act. This means there is a private right of action but it is not clear what damages could be collected or whether any penalty could be imposed if the employer fails to provide the breaks.

Refusing to Return Employee to Work that Poses "High Risk of Re-Injury" Is Not Retaliatory

The Tennessee court of appeals has upheld the dismissal of a workers compensation retaliation lawsuit brought by an employee who was discharged when two board certified physicians determined that if she was returned to work she had a high risk of re-injuring herself. 

The idea that an employer need not return an employee to a job that would be likely to cause future injury is not new.  See Cannon v. Levi Strauss & Co., 29 Fed. Appx. 331 (6th Cir. 2002) (an ADA "regarded as" claim where employer terminated employee because her physician said continued work sewing pants put her at high risk for future carpel tunnel injuries).  What is relatively new is its application to workers compensation retaliation claims (though even here, a decision from years ago had held that an employer did not retaliate against an employee by firing the employee when the employee could not return to work because of a workers' compensation injury).

Yesterday's court of appeals decision today makes this point directly:

There is no evidence in the record that Plaintiff’s filing of workers’ compensation claims played any role whatsoever in the decision not to return her to work. The prohibition against retaliating against employees who file workers’ compensation claims does not guarantee an employee the right to return to work when such return poses a high risk of re-injury. Stated another way, the prohibition against retaliation does not guarantee employees the right to return to work and to continue reinjuring themselves until they are so disabled that they are permanently and totally disabled and can never work again.

Of course, getting to the point of proving that the employee's return to work is likely to cause the employee harm might take some work.  What impressed the court here was that the employer relied upon the advice of "two physicians who are board certified in occupational medicine" (one of whom was the employer's on-site physician).  While relying on a physician who is board certified in occupational medicine clearly helps, the decision does not say that board certification itself is necessary.

What should matter is that the physician has the expertise to make the decision (board certification certainly helps here) and the medical decision evaluates the employee's abilities (as opposed to making assumptions based upon labels).  

Ten years ago, Chattanooga found itself on the wrong end of a disability discrimination decision when it unreasonably relied upon a physician's advice that an HIV positive individual was not qualified to be a police officer.  There, the Sixth Circuit explained why the City's reliance was not reasonable:

Dr. Dowlen's "report" consists of two scribbled lines at the bottom of a boilerplate evaluation form. While the psychiatrist in Pesterfield clearly made an individualized determination as to the plaintiff's medical condition and its effect on his ability to fulfill his job requirements, there is no indication that Dr. Dowlen did anything of the sort. Moreover, the record is replete with factual evidence available to the City at the time --particularly Holiday's successful performance of police jobs that Dr. Dowlen claimed he was unqualified to do -- that flatly contradicted Dr. Dowlen's unsubstantiated conclusion. Under these facts, the City was not entitled to simply rely on the physician's recommendation as the basis for withdrawing its employment offer to Holiday.

Holiday v. Chattanooga, 206 F.3d 637 (6th Cir. 2000).

Employers are often presented with conflicting medical opinions (sometimes from the same physician).  Courts have held that an employer who fairly evaluates competing medical opinions do not discriminate against an employee because of the employee's disability.  Knapp v. Northwestern University, 101 F.3d 473 (7th Cir. 1996) ("in the midst of conflicting expert testimony regarding the degree of serious risk of harm or death, the court's place is to ensure that the exclusion or disqualification of an individual was individualized, reasonably made, and based upon competent medical evidence.").

Presented with conflicting medical information, the EEOC suggests employers consider: 

(1) the area of expertise of each medical professional who has provided information; (2) the kind of information each person providing documentation has about the job's essential functions and the work environment in which they are performed; (3) whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular condition; and, (4) whether the medical opinion is contradicted by information known to or observed by the employer (e.g., information about the employee's actual experience in the job in question or in previous similar jobs).

Court of Appeals Recognizes Public Interest Exception to Retaliation Claims

The Court of Appeals in Atlanta issued an interesting decision today.  To simplify the facts to their essence (the decision is 34 pages long), no one was good enough for the employer's CFO.  The plaintiff was the third in a line of employees fired when their performance did not measure up to the CFO's impossible standards.  As the court said, the CFO "was indiscriminately persnickety."

Seeing the writing on the wall, the employee fired off an email complaining about discrimination.  She lost the discrimination claim because, the court said, there was no evidence this employee was treated better than her two predecessors.  (For this the court cited what it called the Vince Lombardi rule: "someone who treats everyone badly is not guilty of discriminating against anyone.")

But a meritless discrimination claim can spawn a meritorious retaliation claim.  Here, however, the evidence established that the CFO had decided to fire the employee before she sent the complaining email; the CFO had even started looking for another person to mistreat.

What turned this case into a problem was that the CFO fired the employee immediately upon learning about the employee's complaint instead of sticking with the plan to fire the employee once a successor was hired.

Rather than permit the employee to sue for the firing, the court held she could only sue for the premature firing.  She would been fired anyway, the court said, so the only thing she could recover for was the financial loss during the period she would have remained at work.

What made the case interesting is that the company argued the employee was fired when she complained because it was afraid that the employee might vindictively use her position (remember she worked for the CFO) and the access it granted her to sabotage the company’s operations.  That, the court said, could justify  firing the employee earlier than planned.  The court explained:

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. 

What was a good theory failed in its implementation.  The company failed to show its concerns were justified enough to warrant dismissal of the retaliation claim.  The court observed that the employee's email made no threats.  The company also failed to show that it had any other basis for thinking she would try to disrupt operations, nor was there evidence that there were "no means short of firing [the employee] that it could have used to protect itself from the sabotage it feared, such as reassigning her to other duties until it found a replacement."

So while the court recognized an exception to a retaliation claim, it also made it clear that the exception will need to be supported by something more than speculation and unfounded fears by the employer.

What the decision also shows, however, is that rushing to judgment is never a good idea.  Without some well-founded basis for thinking there was an eminent danger or risk, the company should have had the strength of its own convictions and not altered its course.

You can read the decision on the Eleventh Circuit's website: Alvarez v. Royal Atlantic Developers.