Can an Employer Fire an Employee for Posing with a Nazi Symbol?

By Kathleen Jennings (kjj@wimlaw.com)

This past weekend, an alt-right rally in Charlottesville, VA featured numerous men (and some women) wearing white hoods, Nazi symbols, and other symbols of what they considered “white pride.” Many others consider these symbols of racial hatred, and there was a movement on social media to identify some of the attendees of the rally and ask their employers to fire them. Of course, that piqued the interest of this employment lawyer.

Can an employer fire an employee for posing with a Nazi symbol or other expression of racial and/or religious animosity? Even though this behavior occurred outside the workplace?

In an at-will employment state such as Georgia, a private employer can terminate an employee who does not have a written contract of employment at any time, for any reason, or no reason at all. So the answer is Yes. This power to terminate is limited by federal law, which means that an employment decision should not violate federal anti-discrimination laws (which generally apply to employers with 15 or more employees). In the case of the employee posing with the Nazi symbol, he will be hard-pressed to a show that his termination is motivated by discrimination. To show discrimination, he would need to show that similarly situated (i.e., posing with a known symbol of racial animosity) non-white employees were not terminated. The answer is still Yes.

Should an employer fire an employee for posing with a Nazi symbol? If the employee is a supervisor or manager, the answer is Absolutely Yes. That picture will forever carry a taint of racial animus that will affect any employment decision that the employee makes, including any decisions in his chain of command, and that taint will be imputed to the company.

If the employee is not a supervisor or manager, the answer is slightly less definitive. Has this employee shown any discriminatory attitudes or beliefs in the workplace? Has he had conflicts with other employees? Are other employees aware of his beliefs, and does that cause disruption in the workplace? Are others likely to associate this employee’s beliefs with the company? If the answer to any of these questions is yes, then he probably needs to go.

If the employer decides not to terminate the employee, it needs to set some ground rules. First, there needs to be a documented conversation with the employee about the company’s EEO policy and a reaffirmation that the company will not tolerate discrimination. Second, the employee needs to be made aware that he will not be considered for any supervisory or managerial positions. If the employee shows any resistance to either of these concepts, then it is not a good idea to keep him around.

Finally, there is no First Amendment “right to free speech” in a private (non-government) workplace. That means an employee may have to choose between posing with a Nazi symbol and keeping his job.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

How An Arbitration Agreement Put A Class Action Lawsuit on Hold—and May Effectively End It

By Kathleen Jennings (kjj@wimlaw.com)

No company wants to be the target of a class action lawsuit. They are expensive, time-consuming, and a public relations nightmare. This week, the 11th Circuit Court of Appeals put the brakes on a class action lawsuit filed against Waffle House by a rejected applicant on behalf of himself and a class of persons affected by background checks when it enforced an arbitration agreement signed by the lead plaintiff. What makes the facts interesting is that the lead plaintiff, William Jones, signed the Arbitration Agreement with Waffle House after he filed his class action lawsuit. (Jones v. Waffle House, Inc., No. 16-15574, 11th Cir., August 7, 2017).

In a nutshell, Jones applied for a job at a Florida Waffle House in Ormond Beach in December 2014 but was rejected by the store. In October 2015, Jones sued Waffle House and various data-reporting companies in federal district court, claiming that the defendants violated the Fair Credit Reporting Act by failing to give him a copy of the background checks that were run on him in connection with his job application and by failing to give him an opportunity to dispute those background checks. Jones also sought class relief, seeking to represent a class of United States residents who applied for employment or were employed with Waffle House in the preceding five years against whom Waffle House took adverse employment actions based on a background check.

While that lawsuit was pending, Jones continued to seek employment with Waffle House elsewhere. In February 2016, Jones applied for and gained employment at a Waffle House store in Kansas City, Missouri. In connection with his employment, Jones signed an arbitration agreement that covered “all claims and controversies [ ], past, present, or future, arising out of any aspect of or pertaining in any way to [his] employment.” The agreement also included a delegation provision requiring that “[t]he Arbitrator, and not any federal, state, or local court or agency, shall have authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement.”

Jones did not tell the lawyers representing him in the federal lawsuit that he had gained employment with another Waffle House or that he had signed an arbitration agreement. He also did not tell his new employer in Kansas City that he was actively suing Waffle House in Orlando. The situation finally caught up with Jones in March 2016, when Waffle House’s legal team figured out that Jones was working for a Waffle House and therefore had signed an arbitration agreement. At that point, Waffle House moved to compel arbitration pursuant to the agreement. The district court denied the motion and Waffle House timely appealed. The 11th Circuit reversed the district court and held that the motion to compel arbitration should have been granted:

The arbitration agreement contains a broad, valid, and enforceable delegation provision that expresses the parties’ clear and unmistakable intent to arbitrate gateway questions of arbitrability, including questions concerning the interpretation, applicability, enforceability, and formation of the agreement. In the face of the Federal Arbitration Act’s clear preference for and presumption in favor of arbitration, we are obliged to enforce the parties’ clear intent to arbitrate these issues. (Opinion, p. 3)

The enforcement of the arbitration agreement will stay Mr. Jones’ class action lawsuit while the arbitrator decides whether the claims encompassed in that lawsuit should be arbitrated. If the arbitrator concludes that the claims should be arbitrated, then that is where they will go, and Mr. Jones will have to relinquish his role as class representative—all because he took a job with the company he was suing.

The takeaway:

  • A good, enforceable arbitration agreement just might save a company from a world of class action litigation hurt.
  • Always check a plaintiff’s full employment history, up through the present. He or she may be right under your client’s nose.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

The EEOC Frowns on Stereotyping of Older Applicants

By Kathleen Jennings (kjj@wimlaw.com)

A parking management company in Atlanta is facing a discrimination lawsuit filed by the EEOC because an operations manager told a 60-year-old female applicant for a valet job that she would not be successful as a valet because of the “physicality of the job.” Instead, the operations manager told applicant, Valerie Hayden, that she would be perfect for a customer service position and told her to come back the following week to attend orientation.

Then the company made things even worse: the day before she was scheduled to begin her new position, Hayden called to ask what time she should report. However, the operations manager told Hayden that the job had already been filled. The company’s records show that after Hayden was interviewed, it hired several male valets and customer service employees who were substantially younger than Hayden. After this kind of treatment, it is not surprising that Hayden went to the EEOC and filed a charge of discrimination.

The EEOC’s lawsuit asserts that this alleged conduct violates Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). In the press release issued by the EEOC, Antonette Sewell, regional attorney for the Atlanta District Office, stated, “What is most disturbing about this case is that the hiring official automatically assumed that Ms. Hayden was not qualified to work as a valet or customer service parking manager because of her age and the fact that she is a woman. Such managerial behavior is not legal or acceptable in the 21st century.”

Do not make assumptions about a job applicant’s physical ability to perform a job based solely on age or gender. Consider this: Diana Nyad swam from Cuba to Florida at the age of 64. 92-year-old Harriette Thompson completed the San Diego Rock ‘N Roll Marathon in 2015 (and became the oldest person to complete a half-marathon 2 years later).

Pro tip: During the job interview process, an employer can ask an applicant if he/she is able to perform the essential functions of the job. Once a conditional job offer is made, the employer may ask more detailed questions about abilities and disabilities and require medical examinations as long as this is done for all entering employees in that job category.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Trump Administration Gives Us More Information On Where It Stands on LGBTQ Issues

By Kathleen Jennings (kjj@wimlaw.com)

This week, the Trump Administration gave us more information on where it stands on LGBTQ issues with a tweet and a Brief. The tweet came from the President wherein he stated that he plans to reinstate a ban on transgender individuals from serving “in any capacity” in the US armed forces. Whether this tweet will be formally put into practice remains to be seen.

Of more interest to private employers, however, is the Amicus Brief filed by the U.S. Department of Justice yesterday with the full U.S. Court of Appeals for the 2nd Circuit in New York in Zarda v. Altitude Express, a case filed by a now deceased skydiver who claimed that he was fired from his job because of his sexual orientation. In that Brief, the DOJ argues that discrimination on the basis of sexual orientation is not covered by Title VII of the Civil Rights Act of 1964, as amended.

The DOJ’s current position is contrary to the position of the Obama administration’s Justice Department as well as the Equal Employment Opportunity Commission. In its Brief, the DOJ noted that every Congress since 1974 has declined to add a sexual-orientation provision to Title VII, despite what it called “notable changes in societal and cultural attitudes.” The Brief also claimed that the federal government, as the largest employer in the country, has a “substantial and unique interest” in the proper interpretation of Title VII. Although the Equal Employment Opportunity Commission filed its own brief supporting Mr. Zarda, the DOJ Brief claimed that the EEOC was “not speaking for the United States.” “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the DOJ’s Brief said. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

The takeaway: We have the DOJ and the EEOC, both federal agencies, taking opposite positions on the issue of whether discrimination on the basis of sexual orientation is covered by Title VII. This issue is currently being addressed by federal courts in the various Circuits, and may ultimately be resolved by the US Supreme Court. And that ultimate outcome could be determined by the ideological makeup of the Justices. We’ll provide more updates as things develop.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

OSHA Electronic Injury Reporting: One Step Forward, One Step Back

By Kathleen Jennings (kjj@wimlaw.com)

OSHA appears to be going ahead with implementation of electronic reporting of employer injury data. Business groups including the U.S. Chamber of Commerce have actively opposed this electronic reporting rule, which would make employee injury data public. Nevertheless, earlier this month, the Occupational Safety and Health Administration (OSHA) announced that it will launch the Injury Tracking Application (ITA) on Aug. 1, 2017. The Web-based form allows employers to electronically submit required injury and illness data from their completed 2016 OSHA Form 300A. The application will be accessible from the ITA webpage.

However, the deadline for employers to electronically submit 2016 Form 300A has been pushed back to Dec. 1, 2017 (the initial compliance deadline was July 1), to allow affected entities sufficient time to familiarize themselves with the electronic reporting system, and to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation.

According to OSHA, the data submission process involves four steps: (1) Creating an establishment; (2) adding 300A summary data; (3) submitting data to OSHA; and (4) reviewing the confirmation email. The secure website offers three options for data submission. One option will enable users to manually enter data into a web form. Another option will give users the ability to upload a CSV file to process single or multiple establishments at the same time. A third option will allow users of automated recordkeeping systems to transmit data electronically via an application programming interface.

The ITA webpage also includes information on reporting requirements, a list of frequently asked questions and a link to request assistance with completing the form.

Which employers must electronically submit information to OSHA? According to the final rule that became effective on January 1, 2017:

  • Establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually.
  • Establishments with 20 to 249 employees that conduct work in industries that OSHA considers “highly hazardous” must electronically submit to OSHA information from form 300A annually.

These “high risk” industries include construction, manufacturing, wholesale trade, healthcare, utilities, agriculture, forestry, and more.

The requirements are scheduled to be phased in over two years. In 2017, all “covered establishments” must submit data from 2016 Form 300A. Next year, the rule requires establishments with at least 250 employees to submit information from 2017 Forms 300, 300A and 301. Those with 20 to 249 workers in specified industries are required to enter data from Form 300A. The deadline moves up to March 2 in 2019 and beyond.

Note that this is a separate requirement from OSHA’s Severe Injury Reporting protocol, which requires employers to report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours to OSHA.

Pro tip: It is possible that the Trump administration will suspend final implementation of the rule. In the meantime, unless and until that happens, affected employers should prepare to comply with the rule on December 1. We will continue to monitor any developments in this area and report any updates.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

What Impact Does the Opioid Crisis Have on Employment?

By Kathleen Jennings (kjj@wimlaw.com)

This week, Federal Reserve Chair Janet Yellen connected the ongoing opioid crisis in the United States to declining labor force participation, although she could not say whether the opioid crisis is a cause or an effect. “I do think it is related to declining labor force participation among prime-age workers,” Yellen said while answering questions during testimony before the Senate Banking Committee on July 13. “I don’t know if it’s causal or if it’s a symptom of long-running economic maladies that have affected these communities and particularly affected workers who have seen their job opportunities decline.”

Asked whether there is a clear connection between opioids and an opportunity to go to a job, get employed, and have purpose in life, Yellen said that “all of those things are bound up in this opioid crisis,” and are “interacting in ways that are really quite devastating for these individuals and their communities.”

Statistics show that labor force participation in the U.S. has decreased substantially since the start of the 21st century, and male involvement in the workforce has been decreasing since the 1950s. The real challenges for employers and the Fed are to determine why prime-age people, in particular, have fallen out of the workforce and then to identify ways that they can bring some of these people back into the labor market.

Yellen’s remarks echo the findings of a recent report from Wall Street bank Goldman Sachs, which also addressed the connection between the opioid crisis and labor participation. That report noted that “The opioid epidemic is intertwined with the story of declining prime-age participation, especially for men, and this reinforces our doubts about a rebound in the participation rate. ”

According to the United States Department of Health and Human Services, opioid abuse is a serious public health issue. Drug overdose deaths are the leading cause of injury death in the United States. The majority of drug overdose deaths (more than six out of ten) involve an opioid. Since 1999, the number of overdose deaths involving opioids (including prescription opioids and heroin) quadrupled. From 2000 to 2015 more than half a million people died from drug overdoses. 91 Americans die every day from an opioid overdose.

The opioid crisis also affects employers in significant ways. According to a survey released earlier this year by the National Safety Council, approximately 70 percent of employers say their organization has experienced negative impacts from prescription drug abuse among employees. Specifically:

  • 39 percent report absenteeism as the result of drug abuse
  • 29 percent have detected decreased or impaired job performance
  • 29 percent report employees who are dealing with a family member’s addiction problems
  • 22 percent report complaints to HR and lower employee morale as a result of drug abuse
  • Yet, only 19 percent of the HR personnel surveyed say they feel prepared to deal with the issue.

Bottom line: The opioid crisis is a serious issue that affects all employers and the overall U.S. economy. Wall Street has taken notice, but that doesn’t mean that there will be a resolution of this problem any time soon.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

 

The EEOC Is Not Backing Off From Its Position on Leave As A Reasonable Accommodation

By Kathleen Jennings (kjj@wimlaw.com)

What does an employer do when an employee with a chronic health condition uses up all of her FMLA leave and accrued vacation time but still needs time off for medical treatment? During the Obama administration, the EEOC aggressively took the position that employers should not deny or unlawfully restrict the use of leave, including unpaid leave, as a reasonable accommodation to a worker’s disability under the Americans with Disabilities Act. The EEOC even filed lawsuits against employers that unceremoniously terminated employees who had exhausted all of their leave but needed additional leave to deal with serious medical issues.

Many wondered if this policy would change or be scaled back under a Trump administration. From the looks of a lawsuit filed by the EEOC this week, maybe not. On July 6, 2017, the EEOC filed a lawsuit against Time Warner Cable Inc. and Charter Communications Inc. in a California federal district court. (EEOC v. Time Warner Cable Inc., C.D. Cal., No. 17-01355, complaint filed 7/6/17). In the Complaint, the EEOC alleges that Time Warner Cable and Charter Communications violated federal law when they failed to provide additional unpaid leave to a worker seeking treatment for a disability. “This case should serve as a reminder to employers that it is their responsibility to provide reasonable accommodations to employees under the law,” Rosa Viramontes, the EEOC’s Los Angeles District director, said in a July 6 statement.

Pro tip: If an employee with a “disability” (as defined by the ADA) requests an accommodation at work, or the need for an accommodation is obvious, the employer must engage in an interactive process with the employee to determine what, if any, accommodation is reasonable for both sides. Employers can demonstrate a good-faith attempt to accommodate by meeting with the employee, requesting information about the limitations, considering the employee’s requests, and discussing alternatives if a request is burdensome. The EEOC has made it clear that it expects employers to at least consider leave as a form of employee accommodation.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.