In a decision that could have wide-ranging implications for all employers, the Fourth Circuit recently held that an employer’s failure to stop a false rumor that a female employee slept with her male boss to obtain a promotion, could give rise to employer liability under Title VII for gender discrimination. Parker v. Reema Consulting Services Inc., No. 18-1206 (4th Cir. Feb. 8, 2019).

So now employers must police the rumor mill? This decision is confusing to say the least, as employers now have dueling obligations—to quash rumors while not infringing upon an employee’s Section 7 rights to discuss the terms and conditions of employment.
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While most of us rarely think about rubella – a largely forgotten disease that should have disappeared with the “MMR” vaccine¹ – it was the focus of a recent Eighth Circuit decision this month. If you are asking yourself how this largely forgotten illness has anything to do with employment, we will tell you: because for Janice Hustvet, it resulted in the termination of her 15-year position with a healthcare employer.

In Janice Hustvet v. Allina Health System, Case No. 17-2963, decided on December 7, 2018, the Eighth Circuit held that the employer had legitimately terminated Ms. Hustvet when she refused the MMR vaccine and failed to complete a respirator evaluation.

Ms. Hustvet was an “Independent Living Skills Specialist” at the Courage Center. In that role, she worked with individual clients, all of whom were treated as having “compromised” or “fragile” immune systems. In 2013, the Courage Center merged with the Allina Health System, a large healthcare system.

Following the merger, in March of 2013, the Courage Center announced to its employees that they would become employees of Allina and would have to undergo pre-employment screening, including a “pre-placement health assessment screen.” That health assessment screen included “tracking for immunity to certain communicable diseases” and a Respirator Medical Evaluation (“RME”).
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On Friday, July 27, after a 3 week trial in Manhattan, a jury awarded $1.25 million in damages to Enrichetta Ravina, a former professor at Columbia University Business School, who claimed that she was denied tenure and forced to resign in retaliation for complaining that a senior professor, Geert Bekaert, had sexually harassed her.  Professor Bekaert will owe her $500,000 in punitive damages, and Columbia will owe $750,000 in punitive damages.

Ravina first prevailed Thursday on her retaliation claims against Bekaert and against Columbia based on his conduct.  The jury also held Thursday that Bekaert, but not Columbia, could be held liable for punitive damages.  Jurors rejected Ravina’s gender discrimination claims against both.  The money verdicts then came in on Friday.

Interestingly, the jury found that there was no sexual harassment or gender discrimination.  The verdict was on the retaliation claims.  The jury also did not give the plaintiff the back pay and front pay she had sought.  They awarded only punitive damages, against both defendants.
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President Trump likes to mix it up.  Mix everything up, like the National Football League and the First Amendment.

Wait. What?

Whether you think the President defies convention strategically or blunderingly, Trump is more a force of nature than a familiar political type, unabashedly tweeting on topics that are at least arguably Presidential (we will “totally destroy” North Korea) to just plain weird for a President to tweet about (Nordstrom has been unfair to his daughter), even assuming that a tweeting President is itself normal.

So what to make of his speech last week at a rally in Huntsville, Alabama, about the NFL? In case you were in cryogenic hibernation and missed it, President Trump attributed the NFL’s decrease in ratings to player protests and called for the firing of NFL players who call attention to racial injustice by kneeling during the national anthem. Not satisfied that just firing players engaged in social protest would be enough, President Trump also called for football fans to boycott NFL games unless the league fires or suspends players who refuse to stand for the national anthem. President Trump tweeted that players “must stop disrespecting our flag and country.”

Now back to the “force of nature” comment. It is possible that we’ve become so accustomed to the unaccustomed with President Trump that we miss what, at least from a Constitutional perspective, was happening there:  the President, speaking as the President (in other words, a high-level mouthpiece of the federal government) was: 1) demanding that private employers fire employees on the basis of political expression; 2) urging citizens to boycott private businesses who do not fire employees who engage in political expression; and 3) undoubtedly impacting the professional viability for those employees who have chosen to engage in government-condemned political expression.

“Ok,” you might say, but (as we’ve heard ad nauseam), “this was just Trump being Trump,” which really means nothing, as if saying that an elected official was just acting out of whatever momentary impulses he had is all the analysis we need.  So let us put the question to you more clearly:  when the President, not purporting to speak as a private individual (even if he could do that), tells private employers to fire employees because he thinks they are unpatriotic; tells customers to damage the businesses that do not fire employees as demanded; and makes statements that may hurt the professional careers of the people he wants fired, do the private citizens and businesses have claims against the government?
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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.