Xmas 2012I’m sitting here trying to come up with an idea for this year’s family holiday card.  Last year’s theme was “Silent Night”.  But while I think about what I need to be doing to prepare for the holidays, I’m reminded that many employers are also planning their company end-of-year parties.  So, from the archieves are 9 tips to consider when planning the company Christmas party (and I violated one of those tips in the last sentence).  While you ponder the 9 ways I suggest you keep you company holiday party from turning into an internal harassment investigation or EEO charge, if you think of any ideas for my family’s holiday card, send them to me in the comments.

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Last Friday, Halloween, the Texas Supreme Court delivered defendants a “treat” in the form of a mandamus opinion articulating the standard for when discovery requests seeking information related to claims other than the plaintiff’s claims crosses the line from seeking relevant information into an impermissible fishing expedition.

In In re National Lloyds Insurance Company, the Supreme Court considered whether a trial court abused its discretion in ordering the insurance company to produce information on claim files and claims other than the plaintiff’s claim.  This mandamus (mandamus is a fancy word that effectively means to appeal) proceeding arose in the context of a suit over the insurance carrier’s payment of a homeowner’s claim following the storm damage to her property.  The plaintiff sought discovery on:

  • All claim files from the previous six years involving six individual adjusters;
  • All claim files from the past year for properties located in Dallas and Tarrant Counties involving the two adjusting companies that handled Plaintiff’s claims;
  • A listing of the names, addresses, phone numbers, policy numbers and claim numbers associated with the requested files.

The insurance company objected to the requested discovery and the trial court ultimately ordered it to produce the files for the claims handled by the two adjusting companies and for all claims related to properties in Cedar Hill, Texas (a single municipality in Dallas County).  Despite the fact that the trial court narrowed the plaintiff’s requests before ordering production, National Lloyds filed a mandamus proceeding of the discovery order.

In quashing the ordered discovery, Supreme Court notably stated that:

[W]e fail to see how National Lloyd’s overpayment, underpayment, or proper payment of the claims of unrelated third parties is probative of its conduct with respect to Erving’s undervaluation claims at issue in this case. . .  . Scouring claim files in hopes of finding similarly situated claimants whose claims were evaluated differently from Erving’s is at best an ‘impermissible fishing expedition’  Without more, the information sought does not appear reasonably calculated to lead to the discovery of evidence that has a tendency ‘to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.’

. . .

Because the information Erving seeks is not reasonably calculated to lead to the discovery of admissible evidence, the trial court’s order compelling discovery of such information is necessarily overbroad.

How is this discovery case in an insurance dispute relevant to discovery disputes in employment cases?  Plaintiffs in employment litigation frequently ask for all charges, lawsuits and claims of discrimination, retaliation or harassment that have been filed against the employer over the past several years.  Since individuals in companies, not companies, make employment decisions, I’ve always thought that, at most, these types of requests should be limited to charges, lawsuits and claims of discrimination involving the same decision maker as was involved in the plaintiff-employee’s case.  In re National Lloyds Ins. Co. supports that position and provides an employer with authority to utilize in seeking mandamus relief from a court of appeals from discovery orders that compel production of information that go beyond the plaintiff’s claim. 

You can download the full opinion in In re National Lloyds Insurance Company here.

Follow me on Twitter @RussellCawyer.

As I wrote several months ago, light duty programs limiting participation to employees recovering from on-the-job injuries are being increasingly scrutinized by the EEOC (See post here) and that we have likely seen the end of those polices.   The Washington Post reports today that UPS, despite having a case pending before the U.S. Supreme Court over whether pregnant employees are entitled to reasonable accommodation in the form of light duty, has announced that it is expanding its light duty program to allow pregnant employees to participate and take light duty assignments.  According to the Post,

[S]tarting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.

UPS’s shift illustrates that light duty policies limited to employees recovering from on-the-job injuries are being phased out in corporate America.  If your company still has a light duty policy or program that limits eligibility solely to workers who had an on-the-job injury, you should reevaluate the eligibility factors for that policy (or whether the company should offer light duty at all) in light of the developments requiring employers with such policies to make them more broadly available.

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An essential element of most employment discrimination claims is that the employee suffered an adverse employment action. An employee who resigns often has difficulty making out a prima facie case of discrimination. An exception to this general rule is where the employee suffers a constructive discharge. Stated another way, where the employee can prove that the employer, because of the employee’s protected category, made the work conditions so intolerable that a reasonable person would feel compelled to resign, a resignation may constitute an adverse employment action.

Because an employee’s resignation and claim of constructive discharge allows the employee to substitute his decision to quit for an employer’s decision to take advise action, the threshold for proving a claim of constructive discharge is, and should be, quite high.

A recent case from the Fifth Circuit exemplifies this high standard. In Perret et al. v. Nationwide Mutual Insurance Company, two employees sued the company in race and age discrimination suits (arising under the Texas Commission on Human Rights Act) after they resigned following their placement on a performance improvement plan.  One employee resigned after he was placed on a PIP and was thereafter denied a quarterly bonus (that he had otherwise apparently earned) because of a company policy denying bonuses to employees on PIPs.  The second employee resigned several months after taking a leave of absence which was immediately preceded by the company’s placing the employee on a PIP.  A jury found in favor of the employees but the Fifth Circuit reversed the judgment in their favor.

The Fifth Circuit identified the factors an employee can utilize to establish that the working conditions have become objectively intolerable.  Those factors include:

  • a demotion;
  • a reduction in salary;
  • a reduction in job responsibilities;
  • a reassignment to menial or degrading work;
  • badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation;
  • offers of early retirement that would make the employee worse off whether the offer was accepted or not;
  • an ultimatum from the employer that the employee quit or be fired.

In reversing the judgment for the employees, the Court acknowledged that one plaintiff had a quarterly bonus withheld because he was placed on a PIP, but noted the absence any other factors to support of constructive discharge.  As to the second plaintiff who was only placed on the PIP (and did not suffer a missed bonus), the Court found significant, that following the PIP, the employee took two months of leave of absence where he was away from the work area.  Under those circumstances, the Court stated that it was difficult to conclude that he was placed under intolerable working conditions.  Finally, the Court found significant that there was no evidence that Nationwide Mutual’s PIP process inevitably led to the termination of employees and therefore a reasonable employee would not have been compelled to resign following placement on a performance improvement plan –even when coupled with a bonus denial.

The takeaway from Perret is that to establish a constructive discharge claim, merely placement of the employee on a performance improvement plan, even would coupled with a bonus denial, is insufficient as a matter of law to establish a constructive discharge.

You can download a full copy of Perret et al. v. Nationwide Mut. Ins. Co., here.

Follow me on Twitter @RussellCawyer.

It’s a rare day in Texas where a single-plaintiff employment case results in a seven or eight figure jury verdict.  However, as the Austin Business Journal recently reported,Microsoft was hit with an $11.6M jury verdict in a defamation case filed by a former employee falsely accused of sexually harassing a Microsoft contractor.

Defamation cases can be particularly dangerous for employers and individual supervisors alike.  Good reputations are valuable and difficult to quantify.  Additionally, defamation claims are one of the few claims where individual managers and supervisors can be held personally liable. Consequently, when it comes to discussing information about former employees with third parties, Thumper’s father was right.  "If you can say something nice, don’t say nothing at all."

A copy of the Mercieca v. Microsoft complaint can be viewed here.

Follow my on Twitter @RussellCawyer.

As every national news program has announced, the Ebola virus has been diagnosed in a North Texas patient. This is the first diagnosed case of Ebola in the United States.  According to reports, the Liberian national traveled from Liberia through Brussels, Washington D.C., to Dallas, Texas where he was eventually diagnosed with the virus.  Given that the virus has now crossed the Atlantic to the United States, here are a few things employers should know.  

What is Ebola and how is it transmitted?

Ebola, a/k/a hemorrhagic fever, is a deadly virus with no known vaccine (although several experimental treatments are being tested).  The virus has a high fatality rate between 59 and 90 percent.  Symptoms include the sudden onset of fever greater than or equal to 101.5°F, malaise, headache, diarrhea, weakness and vomiting. Symptoms tend appear between two days and three weeks after exposure.  Patients are not contagious if they do not have symptoms.  Ebola is not transmitted through the air or through casual contact.  It is transmitted through contact with infected blood or bodily fluids.

What should employers do?

First, don’t panic.  The epidemic is primarily limited to West Africa.  Given that there has only been one case of the virus diagnosed in Texas and that instance was an imported infection, there does not appear to be an immediate need for employers to take any action other than to monitor current events and be advised if there is a spread or increase in the number of known U.S. cases.  

If, however, your employees work in certain industries such as healthcare, laboratory workers handling human specimens or international airports or airline operations, there is a greater risk of exposure to early onset Ebola virus than for members of the general population.  Healthcare and laboratory workers should strictly follow their hospital’s infection control protocols when handling human bodily fluids.

Similarly, the CDC has issued guidance on steps air carriers can take to protect their work forces.

Second, if the virus spreads in the United States, employers in non-high risk operations should consider making plans for continuing operations in the event of a mass outbreak.  These can include:

  • Identifying key, critical business functions.
  • Creating clear succession plans for key personnel.
  • Training of employees in Ebola signs, symptoms and avoidance.

The Houma-Terrebonne Chamber of Commerce has information on how employers can make plans for Emergency Preparedness and Business Continuity here.

Third, if employees begin to become apprehensive about the potential for a U.S. outbreak, employers can provide training in Ebola prevention and awareness.  The CDC offers some suggestions on how to avoid contracting Ebola. (here).  Educating employees and offering them steps to take to prevent infection may relieve some of their apprehension.

Finally, if a Texas employer believes that it has knowledge of a potential case of Ebola, it should report that belief to the Centers for Disease Control and Texas Department of Health and Human Services.

Resources

The CDC has a site in its Workplace Safety and Health page on Ebola and employers should bookmark this page for reference in the event a spread of the disease occurs.  A link to the page is here.  

The U.S. Department of Labor, Occupational Health and Safety Department also has on-line resources and education about protecting employees from Ebola here.

While it currently appears that most U.S. employers and their workforces have little to fear from the Ebola virus, an ounce of prevention is worth a pound of cure.

Follow me on Twitter @RussellCawyer

The Americans with Disabilities Amendments Act greatly expanded the definition of what constitutes a disability.  Consequently, it increased the number of employees who qualify for the protections of the Act (or as I often lament, we’re all disabled).  A positive consequence of this broad definition of disability for defendant-employers is the increased likelihood that in any disability discrimination case, the facts may allow an employer to argue that the plaintiff was not replaced with someone outside the protected class (i.e., nondisabled). Where the threshold to qualify as disabled is so low, plaintiff employees, and replacements alike, likely to qualify as disabled. Which reminds me of Syndrome statement in the The Incredibles; “everyone’s super, no one will be."

Follow me on Twitter @RussellCawyer.

Our family has a fantasy football league and my 13 year old son Benjamin drafted Adrian Peterson in the pre-season draft. Earlier this week when the Minnesota Vikings activated Peterson to play this weekend, Benjamin was faced with a decision many employers have to make; whether to allow an employee who has been charged, but not convicted, of a criminal offense will be allowed to perform his craft for the employer.

The options employers most frequently chose from when faced with an employee with a pending criminal charge are allowing the employee to continue to work; suspending the employee with or without pay pending resolution of the criminal proceeding or ending the employment relationship altogether. 

Current EEOC guidance discourages employers from making employment-related decisions based on arrests not resulting in convictions. Similarly, our criminal justice system affords the accused the presumption of innocence until proven guilty (something not binding on employment decisions of the employer).

Because the law does not dictate how these decisions are made, they are often driven by economic, business and public relations considerations rather than legal considerations. Is the employee a solid or marginal performer? Does the employee have a control over significant revenue or key customers? Is the offense charged particularly serious or heinous? Has the crime generated media coverage? Peterson was activated to play this weekend because he is a talented running back that the Viking need to play. He was deactivated following the public outcry and sponsors threating or actually pulling their sponsorships of the team. Only when the financial impact of Peterson’s participation outweighed the benefit he could bring on the field did the Vikings reverse course and deactivate the star.

This week, the Vikings made the choice for Benjamin’s fantasy team. The team deactivated the running back and my son had no choice but to bench him this week. I’d like to have watched to see whether Benjamin would have played Peterson this week if the Viking’s hadn’t deactivated him. 

Follow me on Twitter @RussellCawyer.

Yesterday TMZ released shocking video of former Baltimore Ravens running back Ray Rice knocking his then-fiancée out in a casino elevator. Roger Goodell, the NFL Commissioner had, following the league’s investigation, given Rice a two-game suspension for the incident of domestic violence. Following the release of the in-elevator footage, Goodell suspended Rice indefinitely from the league.  You can see the in-elevator video here. (graphic)

In a press release, NFL spokesman said, “We requested from law enforcement all information about the incident, including the video from inside the elevator. That video was not made available to us and no one in our office has seen it until today.” The NFL’s investigation and failure to obtain available evidence before initially suspending Rice for two games has, at a minimum, caused significant embarrassment to the league, and may cost Goodell his job.

When conducting an investigation into player misconduct, the NFL could learn some lessons from human resources professionals. When conducting investigations into complaints of discrimination, harassment or workplace misconduct, human resources professionals know that it is important to obtain all the available evidence and information before making conclusions on the investigation. This includes interviewing all of the available witnesses, requesting relevant documents and tangible items from the complaining party, the accused, witnesses and even third parties. 
 
Here, the NFL’s investigation broke down and was inadequate. While the NFL allegedly requested a copy of the video tape from law enforcement authorities (who are unlikely to provide evidence to the league on an open criminal investigation), Fox Sports is reporting that the NFL never asked the casino for a copy of the in-elevator videotape and must have never asked Rice if he had a copy. The casino told Fox Sports that it would have given a copy of the video to the NFL had it had asked just as it gave a copy to the police and to Ray Rice’s lawyer. As a result of failing to obtain or view the in-elevator footage prior to making its initial disciplinary decision, the NFL made its decision without a full appreciation of the facts –something that today, with the benefit of hindsight, I am sure the league and Goodell surely regret.

The NFL’s investigation into the Rice incident emphasizes the importance of a thorough investigation before reaching conclusions and making decisions that affect worker’s employment. If evidence that was available to the investigator at the time of the investigation is not obtained, or at least requested (without good excuse), the failure to obtain or evaluate that information can undermine the thoroughness and adequacy of an investigation. Employers, and the NFL, should strive to make important decisions, only after considering all of the information that is available or readily obtainable. 

As the NFL and Roger Goodell are about to learn, failure to conduct thorough investigations can have serious consequences. Roger Goodell’s tenure as NFL Commissioner may well be at an end.

Follow me on Twitter @RussellCawyer. 

Last week I wrote about a religious discrimination case where an employer snatched victory from the jaws of defeat at the Fifth Circuit Court of Appeals. This week, we have a Fifth Circuit opinion where the court took away an employer’s victory in another religious discrimination case and sent the case back to the trial court for trial. Today’s case should remind employers of their religious accommodation obligations and how those obligations may differ from reasonable accommodations required under the Americans with Disabilities Act.

In Davis v. Fort Bend County, Fort Bend County was scheduled to install a computer network and audiovisual system in the newly build Fort Bend County Justice Center. Lois Davis was a four year employee of the County IT department. All technical support employees were required to participate in the installation that was scheduled for the July 4th weekend. One week before the installation project, Davis told her supervisor she could not attend on Sunday, July 3rd due to a previously scheduled religious commitment. The religious commitment was the ground breaking of a new church and feeding the community. Davis told her supervisor that the commitment was a special church service but that she was more than willing to come in after church services. She also had arranged for a replacement during her absence as she had done in the past. Her supervisor did not approve the absence and told Davis that her absence would be grounds for discipline. When Davis attended her religious event rather than the IT installation, the County terminated her employment.

The trial court granted the County’s motion for summary judgment concluding that Davis’ absence from work was due to a personal commitment rather than a religious committment and noted that being an avid and active member of a church did not elevate every activity associated with the church to a legally protectable religious practice. The court of appeals rejected this conclusion observing that the proper inquiry was not whether the July 3rd event was itself a religious event but whether Davis sincerely believed it to be religious in her own belief system. The appellate court also went on to state that an employee’s sincerity of her religious practice is largely a matter of individual credibility and the judicial inquiry into the sincerity of that belief should be handled with a “light touch” or “judicial shyness.” Applying these standards to the record evidence, the court of appeals held that the employer’s victory had to be reversed and the case sent back to the trial court for a potential trial on the merits.

What Davis should remind employers is that there are significant differences in handling employee’s request for accommodation of their religious beliefs and accommodations required under the ADA. 

A few thoughts about Title VII’s religious obligations for employers:

  • Treating all employees the same despite their religious beliefs can lead to discrimination claims;
  • It is difficult to challenge the sincerity of an employee’s religious belief;
  • Virtually any religion, moral or belief system will qualify as a Title VII religion (e.g., Church of the Flying Spaghetti Monster);
  • Employers have an obligation to accommodate the known, sincerely held religious beliefs that conflict with an employee’s work obligations;
  • Reasonable accommodations that pose an undue hardship need not be granted.
  • Under Title VII, undue hardship includes any accommodation that is more than de minimis expense.

Employers may consider a variety of accommodations that might not constitute an undue hardship under the right circumstances including:

  • Voluntary Substitutes or Job Swaps;
  • Flexible scheduling;
  • Job transfers and reassignments;
  • Use of paid time off (e.g., vacation) or unpaid time off;
  • Dress and Grooming Code Changes

You can download a complete copy of Davis v. Fort Bend County here [.pdf].

Follow me on Twitter@RussellCawyer.