Racism in Your Spare Time: What Are The Legal Limits for Employers?

On Saturday, August 12, as the nation watched, protests in Charlottesville, Virginia regarding the anticipated removal of a statue of Confederate general Robert E. Lee turned deadly. In the days and weeks after, both the small city and the country wrestled to make sense of the events. In the aftermath, employers too were forced to make decisions and judgment calls as the online community identified specific individuals as white supremacists.

We suspect that most of our readers, like us, don’t like white supremacists. But even apart from the moral implications of Charlottesville, the public acts of employees can impact the public goodwill, brand and reputation of an employer—that is, the most valuable things a company has. So when an employee associated with a particular employer engages in distasteful, or hateful, or outrageous public conduct, what can an employer do? Should the employees be terminated? Disciplined? Allowed to do and say whatever they want while not at work?

Background

Soon after August 12, Twitter accounts, including one called @YesYoureRacist, began attempts to identify rally participants, requesting the following of Twitter users: “If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I’ll make them famous.” The viral and fast-moving world of social media helped the YesYoureRacist Twitter account and similar accounts identify rally participants, both with names and pictures.

The identifications resulted in one father’s public open letter response to his son’s participation, informing the public that the family “loudly repudiate[d] my son’s vile, hateful and racist rhetoric and actions” via a North Dakota newspaper. But the disclosures had workplace ramifications as well.

Following the identification of Cole White as a protester involved in the torch-lit march on Friday, August 11, the hot-dog restaurant in Berkley, California where White worked, Top Dog, reportedly displayed a sign on the restaurant’s exterior stating “Effective Saturday 12th August, Cole White no longer works at Top Dog. The actions of those in Charlottesville are not supported by Top Dog. We believe in individual freedom and voluntary association for everyone.” According to a statement issued by Top Dog to the Washington Post, White “voluntarily resigned” from his employment. The statement went on to note, “We do respect our employees’ right to their opinions. They are free to make their own choices but must accept the responsibilities of those choices.”

On the opposite coast, a cook at Uno Pizzeria and Grill in Vermont was reportedly terminated after his participation in the protests. Unlike Top Dog, the pizza chain’s Chief Marketing Office, Skip Weldon, issued a statement to the Burlington Free Press that “Ryan Roy has been terminated…We are committed to the fair treatment of all people and the safety of our guests and employees at our restaurants.”

News outlets similarly reported the termination of a welder and mechanic based in Charleston, South Carolina after he was photographed in Charlottesville beside the individual accused of killing one person and injuring others with his vehicle. Other rally-related terminations were reported. Continue Reading

Legal Update: Trump’s One-offs to Labor Regulations Change the Big Picture

When Trump was a brand-new President (or force of nature, depending on how you look at it), we observed that the dawn of his administration would not necessarily augur wholesale changes to the overall landscape of legal concerns for employers.  Why?  Because, as with so many things in Trumpworld, there didn’t appear to be a coherent labor policy, or (given the inexperience of some of his closest team members) even policy competence.

In fairness, however, marauding Huns didn’t have to be particularly artful or finessed about the way they sacked whole cities, right?  In a transformative conquest, a blunt hammer probably works as well as a rapier with pinpoint accuracy.

And so it is with Trump.  With just about eight months of activity, we have seen the Presidential administration do what Trump is best at:  take direct aim at what Obama did and do the opposite.  Incremental changes to labor and employment law and regulation under Trump (and some related developments in the courts) have, one by one, almost entirely reversed course on many of the pet labor and employment initiatives the Obama administration championed, among them:

    • Limitations on class action waivers, which made it more difficult for large groups of plaintiffs to sue companies.
    • “Joint employer” standards that gave labor unions ammunition to argue that multiple franchisees (think McDonald’s), which in the past were treated as separate employers, are in fact joint employers.  Those standards, now reversed, gave unions one big fish for organizing instead of many little ones.
    • A DOL focus on policing the misclassification of employees as independent contractors by employers—a move sometimes made by employers to reduce tax and employee benefits liabilities.
    • Limitations on OSHA drug testing rules covering employees.
    • “Blacklisting” regulations that would require federal contractors to publish claims brought against them alleging labor and employment law violations.
    • Providing additional fiscal resources to the EEOC and OFCCP, instead merging these employment-related agencies into a single entity.
    • Expansions of the so-called “persuader rule,” which required employers to disclose paid relationships with individuals or firms helping employers fight union organizing campaigns.
    • New FLSA overtime regulations, which would have raised the “salary threshold” under which overtime must always be paid and expanded overtime pay entitlement to as many as four million American workers.
    • A National Labor Relations Board stocked with progressives who increased burdens on employers and decreased burdens on unions, in favor of an NLRB much more likely to roll back Obama-era changes.

Continue Reading

Are “Cute” Employees A New Protected Class in New York?

New York employers now have a new class of employees to be wary of – the “cute”.  A New York appellate court just issued a decision reviving a gender discrimination claim brought by a female plaintiff, who alleged that she was fired because her employer’s wife thought she was too “cute” and a threat to her marriage. Edwards v. Nicolai.

The Claim

Plaintiff Dilek Edwards was hired by Charles Nicolai, a chiropractor, to be a yoga and massage therapist in his practice in April 2012. Nicolai’s wife, Stephanie Adams, a former Playboy Playmate, also works in his practice.  Plaintiff alleged that, despite defendant’s praise of her work, he also told her that his wife was “jealous” of her because she was “too cute”.  A few months later, Edwards was abruptly fired by the wife after a late night text rant from Ms. Adams telling the plaintiff she should “stay the — away from my husband.”

The text message went on to say: “you are NOT welcome at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the F*** away from my husband and family!!!!!!!.” The next day, Nicolai sent Edwards an email telling her she was fired.

Plaintiff sued for gender discrimination under the New York State and City Human Rights Laws as well as for defamation.

The Decision

Initially a lower court granted defendants’ motion to dismiss the complaint but the decision was just overturned by an appeals court in New York.

First, the appellate court held that malice could be inferred from the allegations in the complaint, and thus plaintiff did have a defamation claim.

Second, the court also revived plaintiff’s gender discrimination claim stating: “While plaintiff does not allege that she was ever subjected to sexual harassment at WSCW, she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant’s motivation to terminate plaintiff’s employment was sexual in nature.”

The panel noted that Plaintiff alleged that she had received praise for her work and reasoned that plaintiff did have a claim for gender discrimination because “adverse employment actions motivated by sexual attraction are gender based and, therefore, constitute unlawful gender discrimination.” Defendants argued that this case is similar to the line of ‘spousal jealousy’ cases involving employees being terminated after having consensual affairs with their boss. However, the court found them distinguishable and reasoned that in those cases it was the employee’s behavior (the affair), not just a perceived attraction, that led to termination.  The court found that there was no allegation that Plaintiff Edwards has ever behaved inappropriately or that she had any affair with Dr. Nicolai. Thus, it was only her gender that was the basis for the termination.

Lessons Learned

Of course, this is just an initial motion and Ms. Edwards has a long way to go and must now prove her claims.  Nonetheless, this case does signal yet another expansion of employment protections in New York.

The core lesson from this decision is – employers cannot assume New York is an “at will” state any more.  Due to the expanding breadth of our state and city discrimination laws, virtually every employee fits into some protected category and courts and juries will often find a way to challenge irrational or unfair employment decisions as discriminatory.

As a management attorney, I could argue the employer’s side, that a jealous wife should be able to fire a “cute” employee, as her employment was “at will”.  However, the First Department clearly did not agree and felt that this decision – as evidenced by the text message – was based on plaintiff’s female gender and some imagined threat that the wife perceived that plaintiff presented to the employer’s marriage.  It appears the judges on the panel did not believe there was a legitimate reason for the plaintiff to lose her job.

It’s an old adage, but the bottom line is – if you are going to terminate an employee, make sure that you have a legitimate reason for the decision.  It is also important to document work and performance issues to support that decision.

And lastly, don’t send angry text messages to your employees in the middle of the night.

 

 

New EU Privacy Legislation Clashes with US Discovery Obligations: Forewarning for companies with employees on both sides of the Atlantic

The European Union is launching new privacy and data protection rules in May 2018. This new regulatory framework, known as the General Data Protection Regulation (GDPR) is known to have a substantial extra territorial reach (also likely to apply to every US organization processing personal information of even a single individual in the EU) and boast sanctions of up to € 20 million in fines or, in the case of an undertaking, 4 percent of the annual worldwide turnover.

The GDPR prohibits the transfer of any personal data processed in the European Union to a country whose privacy laws are considered inadequate, as is the case for the US. This may create a problem when an employer needs to comply with US discovery obligations.

It is Article 48 of the GDPR which explicitly states that a judgment by a non-EU court or administrative authority is not a valid basis for transferring data. Such orders or judgments will only be recognized if based on an international agreement, convention or treaty between the third country and the EU or member state, such as e.g. mutual legal assistance treaties or the Hague Convention.

After May 2018, disclosures to opponents in response to U.S. civil discovery requests involving data protected under GDPR will either need to rely on an appropriate international agreement or find other acceptable bases in the GDPR for transferring data out of the EU.

Preparation and coordination of all data transfers will be key in reconciling US discovery obligations and EU privacy legislation. The stakes, both on the US and EU side, have never been higher. The Kelley Drye Labor and Employment team stand ready to assist clients prepare for and navigate this complex new process.

EU team: Bert Theeuwes, Saskia Lemeire
US team: Barbara Hoey, Mark Konkel

Is Misogyny Protected Activity?

The blogs and networks have been buzzing over the past few days with news that a senior software engineer at Google – James Damore – had taken it upon himself to write and post on an internal Google mailing list a ten page memo, explaining his theory on why Google’s efforts to diversify its workforce were not working. In his words, Google’s “politically correct mononculture” had reached the point where efforts to create diversity by hiring and promoting more women (and other under-represented groups) was actually hurting the company.  Implicit in his criticism was what seemed like an undercurrent that men were somehow better suited than women for many tech jobs, and that Google was hiring or promoting women over men, even when the woman might not be the best person for the role.

In the course of this memo, Damore made a number of openly sexist and stereotypical comments about women, which many employees of both sexes took great offense to.  Most disturbing was his core view, that the reason women did not succeed in tech jobs was “biological”.

For instance, he opined:

  • that women were more apt to have a stronger interest in “people rather than things” and that tech was an industry which focused on things
  • that women had a higher level of “agreeableness”, which is why they had a harder time negotiating salary
  • that women had “higher anxiety/lower stress tolerance”

Finally, he theorized that the reason there were not more women in leadership roles at tech companies was because they did not have the same “drive for status” or to succeed as men did.

Damore also was very critical and dismissive of Google’s diversity programs, training, and other company initiatives aimed at helping women and diverse employees advance.

The memo of course went viral, and was soon circulating outside of Google and all over the world. Continue Reading

The ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ Exceptions Under The WARN Act

Under the federal WARN Act, companies that maintain a facility with 100 or more full-time employees are required to provide no less than 60 days’ written notice to employees affected by a mass layoff or facility closure. Many employers are faced with the difficult task of determining whether or when these notices should be distributed.

The WARN Act contains several affirmative defenses that are designed to address this conundrum, and provide employers with a complete defense to liability under the statute when a company’s exigent condition forces an immediate cessation of operations. These exceptions to the WARN notice obligations are identified as the ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ exceptions. Employers faced with possible pending layoffs or facility closures should consider both of them independently.

Read more in the Employment Law Strategist article, The ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ Exceptions Under The WARN Act, written by David Van Pelt (access may require subscription).

Banning Visible Political, Philosophical or Religious Signs in the European Workplace – Does Your Policy Need Updating?

The highest court of the European Union recently issued two judgments allowing employers to ban the visible wearing of political, philosophical or religious signs at the workplace (Judgment of the Court of Justice of the European Union in case C-157/15 and in case C-188/15). If you have a policy in place for your EU-based employees that touches upon the wearing of political, philosophical or religious signs, you should verify whether that policy is in line with this latest interpretation of the principle of equal treatment.

On 14 March 2017, the European Court of Justice ruled that “an internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination”. The two cases concerned the dismissal of two women for wearing the Islamic headscarf, which was prohibited by the employer. The Court decided that wearing the Islamic headscarf could be banned without constituting discrimination, but only as part of a general policy barring all religious and political symbols. Furthermore, that policy must have a legitimate aim such as, for example, pursuing neutrality in the relation with customers. Lastly, such a policy must be achieved through appropriate and necessary means.

Continue Reading

Are We Being Taped? – The Second Circuit Weighs in on Workplace Taping

In the era of the ever-present cell phone, where many people seem to video and record (and then post to social media) virtually everything that goes on in their lives, employers have tried to limit such activity in the workplace with blanket “no recording” policies. These were just dealt a blow last week, when the Second Circuit affirmed a decision by the NLRB, which held that very broad  no-recording policies do violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). See Whole Foods Market Group Inc. v. NLRB, 16-0002 (2d Cir. June 1, 2017).

  • Are all such policies now unlawful?  NO.
  • What should employers do?  Read on. Employers now need to go back and review their policies and, if it can be justified, create a tailored policy designed to protect information that deserves protection, but is not so broad that it can be seen as curbing employee’s rights to organize and bargain collectively.

Continue Reading

Gay Bias Is Still In The News

The Second Circuit has announced that it is scheduling en banc review and has asked the EEOC to weigh in on the controversial question of whether Title VII covers discrimination on sexual orientation.  The court has invited the EEOC to brief and participate in oral argument in the case of Zarda v. Altitude Express, Inc. (15-3775), where a gay skydiving instructor has accused his employer of unlawful discrimination.

The Seventh Circuit has already held that Title VII does prohibit sexual orientation discrimination.  There is also a pending en banc appeal of this issue in the Eleventh Circuit.

We will be monitoring this and other Second Circuit cases closely and will let you know as things develop.

Should a Statement Made at Mediation Ever be Used in Court?

We have been watching with some concern recent developments in a much-publicized gender discrimination action filed in DC federal court by a female partner and practice group head in the Washington, D.C. office of Proskauer Rose LLP. The plaintiff filed her $500 million gender bias suit under a Jane Doe pseudonym on May 12, 2017, alleging that the firm engaged in salary discrimination and retaliation.  Proskauer vehemently denied Jane Doe’s allegations, and maintains that she was compensated fairly in accordance with her contribution to the firm, and its pay structure.

Last week, the legal press reported that the plaintiff was making the explosive allegation that she had been “threatened” with termination by the firm, after making an internal complaint of discrimination. It turns out that the alleged “threats” were made during a failed mediation held at JAMS, just before the suit was filed. Plaintiff “Jane Doe” claimed that a Proskauer attorney stated during mediation that she was “ going to be terminated,” because her “complaint upset a lot of people.”

This alleged “threat” was then made a matter of public record when Jane Doe’s counsel filed an emergency motion in the federal action, asking the court to order the mediator’s notes preserved, to settle a “potential he-said-she-said impasse,” on whether these alleged threats had been made. The same day Jane Doe filed her emergency motion, the court issued a minute order granting it, explaining “pursuant to the court’s inherent authority to oversee discovery and the need to preserve the status quo pending a fuller evaluation of the issues, JAMS must preserve the mediator’s notes from the parties’ March 23, 2017 mediation session and all other documents related to the mediation pending further order of the court.  Continue Reading

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