At the risk of jinxing things, we’d call May 2014 a fairly quiet month in employment law. Oh, sure, there was some activity, but most of it was in those type of employment lawsuits that are often referred to as “teachable moments.” So even though it’s summer, let’s go to school, shall we?
A subject near and dear to many students’ hearts is the minimum wage. Several states have increased their minimum wages, and some cities are getting in on the act, too.
Next lesson: “You are charged with protecting your employees, even from your customers.” For years, a customer at an Oregon grocery store sexually harassed female cashiers in a very physical way, grabbing, cornering and touching them. Their complaints were dismissed as hearsay, despite videotaped evidence of the customer’s bad acts. The EEOC filed a case on behalf of the employees and the grocery company paid a fine of nearly $500K.
A corollary to that lesson: “You are also charged with protecting your employees from vendors.” In North Carolina, a circuit court ruled that a tile manufacturer was responsible for continuing to work with a vendor’s salesman, even after he repeatedly made extremely crude racial and sexual remarks to at least one customer service employee. The salesman’s employer (at the vendor’s company) laughed off reports of what the salesman had said, which makes us think that a lawsuit against that vendor by an in-house employee is a real possibility.
And because it apparently bears repeating over and over: “Sexual harassment is not funny, especially not to the person who’s being harassed. What’s even less funny than sexual harassment is a massive lawsuit.”
On to our next lesson! “Never use social media while inebriated.” Sure, that observation on the state of life you got after the fifth beer might well be profound, but you’re much more likely to post something that insults your co-workers, company or industry, like a Paypal employee recently did. Even after trying to pull the “I was just testing out a new phone” line and deleting all the offensive tweets, the employee was still fired.
The deleting of tweets brings us to “Get/save/print a copy of an offending social media post before firing someone for it.” The Paypal employee’s offensive tweets were saved and re-posted all over the tech industry blogs, so the company has documented cause for firing. In a case where the company didn’t get/save/print the post, the adverse effects on an employee were ruled unjust due to lack of evidence.
One more lesson that seems to need repeating is “Don’t penalize workers for being disabled.” This applies to an auto parts store that gave employees “points” for absences without differentiating absences covered by the Americans with Disabilities Act, and terminated employees after they accrued 12 points. This company has had 4 ADA-related lawsuits filed against it (and decided in the plaintiffs’ favor) in the past 5 years, which indicates that someone in management isn’t learning their lessons.
More specifically, “Don’t penalize workers for being HIV-positive, even in a health-care setting.” A nursing home in Tennessee recently fired a licensed practical nurse after learning they were HIV-positive, and were subsequently hit with a $90K fine.
A lesson frequently taught by the series Game of Thrones is: “Trying to get revenge will only hurt you more in the long run.” This lesson is borne out by the recent case of an HR director in Florida who singled an employee out for drug testing because of an ongoing dispute between the two men. A federal court ruled that “I don’t like him” is not a valid reason for testing one particular employee.
Now, on the employee side, we must say, “If you ask for a cup and are told you can’t have one, and decide to take 2 instead, that’s a legitimate firing offense.” The main mitigating factor in this decision is that the employer is a casino, which means they have to be extra-strict and extra-consistent when it comes to theft of any kind—and casino employees know that.
Similarly, “If you wear KKK regalia in the workplace and get fired, that’s not discrimination.” The First Amendment deals with government control of what people say and do; businesses are well within their rights to tell employees, “You can’t say/do that on company property.”
And finally, “If you get demoted for sunbathing nude on the roof of a company facility, that’s not discrimination.” Even if you’re a member of a protected class, it’s still totally fair to demote you for laying around naked on company property.
Let’s close with that charming image, shall we? See you in a month!