Labor Day Observations from a Texas Employment Lawyer

Labor Day is celebrated each year to honor American workers.  A nation can show no greater honor to its workers than to ensure respect through safe working conditions, fair pay and benefits, and a work environment free of discrimination.   That includes protections against pay disparity between the sexes, as well discrimination against older workers, pregnant employees and the disabled.

As far as our nation has come in the last 100 years in extending worker protections, we continue to lack in many areas.   Here are a few Labor Day thoughts.

Did you know. . .

….you can give up your right to bring a legal claim through the court system by accepting a job?  The answer is yes.

A right to a jury trial is a constitutional right, yet many employers require workers to agree to arbitration agreements as a condition of employment.  That means if you refuse to sign it, you will be fired!  Some employers are just sticking the arbitration agreement in handbooks, and when you sign for your handbook you are “agreeing” to arbitration.  The result is that if you ever have to bring a legal claim against your employer, you will not have your case decided by a judge in your city, or a jury of your peers.  Rather it will be decided by an arbitrator paid for by your employer.  Many times an employer will pay tens of thousands of dollars to the arbitrator to decide a case.   Can you imagine if you had your case in front of a judge that received a contribution of $25,000 from your former employer?  It would never happen because that judge would recuse his or herself.   Not the case in arbitration.  Sounds unfair?  It is.

…you can work for your employer one day and they can limit your future employment for the next two years?  The answer is yes.  

Most workers in Texas are “at-will” employees.   That means you can be fired at any time, for any reason that does not violate an employment law.    Some employers are requiring workers to sign non-compete agreements as a condition of employment.  These non-compete agreements essentially bar you from working for a competitor of your employer for a certain period of time (usually 1 or 2 years) in a certain geographic area (city wide or a 200 mile radius for your workplace).    So in exchange for your employer giving you absolutely no guarantee of future employment, they can greatly affect your livelihood and ability to support your family.   If you have a specific skill, or work in a specific profession, these non-compete agreements can devastate you financially.   Sounds unfair? It is.

…you can be fired for getting hurt at work?  The answer is yes.  

Texas law prohibits the termination of a worker for reporting a workers’ compensation claim.  The problem is that Texas does not require all employers to have workers’ comp insurance.   If an employer does not carry workers’ comp insurance then this retaliation law does not apply to them.  The result is that in some cases you can legally be fired for getting hurt on the job.  Sounds unfair? It is.

…you can be fired simply because of your sexual orientation?   The answer is yes.  

Both federal and Texas anti-discrimination laws do not prohibit discrimination based on a worker’s sexual orientation (except the Seventh Circuit, which Texas is not a part of).   While federal legislation has been proposed to amend the Civil Rights Act of 1964 to include sexual orientation discrimination, it has died in committee.  A good employment attorney can sometimes bring a gender discrimination claim based on an employer or supervisor making decisions based on “gender stereotypes” (e.g. criticizing a gay worker for not acting “like a male”).     Unfortunately that argument may not be available in many cases where the LGBT community faces workplace discrimination and harassment.   Sounds unfair? It is.

Let’s celebrate the day of the American worker, but let us not forget that work still has to be done to ensure full and fair protections for all of the people that make this country great.   Happy Labor Day!

“Workplace Rights are Human Rights.”

–   Eleanor Roosevelt

The Google “Diversity” Memo and Employment Law

On a recent flight, Google engineer James Damore decided to draft a memorandum in which he rambled on about, in his opinion, Google’s misdirected attempt to achieve racial and gender diversity in the workplace.   There is no evidence Damore was denied a job or promotion due to favorable treatment towards a minority or female candidate.  Damore just wanted to vent about his employer’s policy on diversity.  The more controversial parts of the document include Damore’s opinion that the lack of equal representation of women in the tech industry, as well as in positions of leadership, did not stem from discrimination but rather due to biological differences between men and women.  According to the Damore, women genetically possessed greater neuroticism (higher anxiety, lower stress tolerance) than men.   I believe this “biological differences” argument was used in the past to justify discrimination against African-Americans, but I digress.

Damore decided to share his memorandum internally with co-workers.  The memo went viral, and Google responded by terminating Damore’s employment based on a violation of its Code of Conduct policy.   Damore is now threatening to sue.   Damore supporters decried political correctness had run afoul.   Damore opponents applaud Google’s decision to strongly and swiftly address discriminatory attitudes in the workplace.  Which side is right?

If you are employed in Texas you are probably “at-will,” which means your employer can terminate you for any reason that does not violate a specific law, such as anti-discrimination laws.    This includes being foolish enough to disseminate a memo or post on social media negative things about your employer or co-workers.   You have no First Amendment or “free speech” rights unless you are employed by a government employer (e.g. federal, state, city, county or school district), and even as a public employee you cannot say whatever you want.

For employers like Google, if prompt action is not taken it could be argued in other discrimination cases that the company fosters biased attitudes in the workplace by not disciplining workers whose words and actions are discriminatory.   In fact, Google is currently in litigation over claims of gender pay disparity.   Their reaction to Damore’s memo was therefore not a surprise.

Employers just need to be careful to ensure that their policies do not inhibit or prevent valid employee complaints and communications about workplace issues, while making it clear that discriminatory or harassing behavior is prohibited.

Section 7 of The National Labor Relations Act provides protections for “concerted activities” of two or more employees in addressing workplace concerns.   Damore’s memo was distributed to co-workers so it could be view as a “concerted activity.”    Was the memo, however, a concerted activity about workplace concerns, or just a personal rant about political correctness that included discriminatory stereotypes about women?  Probably the latter, but we will have to wait and see the outcome.   That is unless Google and Damore quietly settle their legal dispute first.

What lessons can we learn from this Google “Diversity” memo?  Keep your opinions to yourself … and watch the inflight movie.

Better to remain silent and be thought a fool than to speak out and remove all doubt.”

  • Abraham Lincoln

Questioning Religious Beliefs Costs Employer

When St. Vincent Health Center, a Catholic based hospital system, implemented a mandatory flu vaccination policy for its employees, it carved out an exemption for workers who objected based on either medical or religious reasons.   If the exemption was approved, employees could continue working if they wore masks while in contact with patients during flu season.  If the exemption was denied and the worker still refused the vaccination, the employee would be terminated.  Fourteen employees requested and received medical exemptions.  The hospital, however, denied all accommodation requests by employees requesting religious exemptions, resulting in the discharge of six workers.   After a religious discrimination suit was brought on behalf of these employees by the EEOC, the employer settled by paying $300,000 in damages, and offering reinstatement to the affected employees.

Both federal and state discrimination laws prohibit discrimination based on religious beliefs.   This includes denying a reasonable accommodation request based on an employee’s “sincerely held religious belief,” unless the employer can prove an undue hardship on its business.  “Religion” and “religious beliefs” are broadly defined under the law, and include not only traditional religions, but also non-traditional religions or beliefs, as well as non-theistic moral or ethical beliefs as to what is right or wrong.  See EEOC Compliance Manual on Religious Discrimination.  Employers need to be aware that courts have traditionally been reluctant to exclude a belief or practice as not being covered under religious discrimination laws, and even more reluctant to question if an employee’s belief is sincerely held. As St. Vincent discovered, failing to grant reasonable accommodation requests based on religious beliefs can be costly.

 “The only way to be true to our American tradition is to maintain absolute governmental neutrality regarding religious beliefs and practices.”

–         Bill Bradley, Former U.S. Senator

If You See Something, Say Something

This is more than just the slogan used by the U.S. Department of Homeland Security to encourage people to report suspicious terrorist activity.   It should also be the mantra of every workplace to encourage the reporting of discrimination and sexual harassment.   Simply stated, without witnesses who are willing to get involved and “say something,” discrimination and sexual harassment cannot be investigated and addressed, allowing it to spread throughout the workforce like a cancer.     A recent high profile lawsuit shows how witnesses were not only able to corroborate some of the plaintiff’s claims and stop an orchestrated attack on the plaintiff’s character by her former employer, but also contribute to the exit of a very powerful person who had a long history of sexual harassment.

The former Fox New co-anchor, Gretchen Carlson, filed suit against Fox News CEO Rogers Ailes on July 6, 2016.    The lawsuit alleged Ailes made sexual advances against Carlson, and then later retaliated against her by terminating her employment when she refused the advances and complained about sexual harassment.    Ailes issued a statement in response to the lawsuit calling the allegations false and offensive, and claimed that Carlson was retaliating against him for not renewing her contract.  The parent company for Fox News also issued a statement declaring it had “full confidence” in Ailes, but would conduct an internal review of the matter.    Soon thereafter, Fox News personalities such as Bill O’Reilly, Sean Hannity and Greta Van Susteren commented publicly, disparaging Carlson, her claims and her motives.    Fox News was succeeding in its attack of the victim, until…

Reports were leaked that several female employees confirmed during the internal investigation that they too were sexually harassed by Ailes, including Fox News star Megyn Kelly, who also took on presidential candidate Donald Trump and his offensive and sexist comments.    All of a sudden, the case turned 180 degrees.   The heralded CEO whom 21st Century Fox had “full confidence” in was resigning.  Gretchen Carlson was no longer a liar, or a vindictive ex-employee making false allegations.   This however, would have never occurred had Megyn Kelly and other brave employees had not been willing to get involved and speak the truth.

Both federal and state anti-discrimination laws prohibit an employer from retaliating against employees who report or oppose discrimination or sexual harassment, including those who testify, assist or participate in any manner in an investigation.    The spirit of the law and the realities of the workplace are, however, a world apart.     Unfortunately, there are still some employers who use intimidation and threats to prevent workers from speaking the truth or fully cooperating in co-worker complaints.    It is not an easy decision for workers to get involved and speak up, but the consequences of remaining silent are much worse.

All that is necessary for the triumph of evil is for good men to do nothing.

—Edmund Burke (attributed)

KNOW YOUR FMLA RIGHTS!

All of us feel the tension between work and family life.    At some point, you or a family member will face a serious health condition, or perhaps a pregnancy.    Will your job be protected if you need to take time off for a medical reason or maternity leave?

In 1993, Congress enacted into law the Family and Medical Leave Act.   For every American worker who qualifies, you are legally entitled to take up to 12 weeks of unpaid leave in a twelve month period; maintenance of health benefits during the leave period; and the right to be reinstated to the same or equivalent position after taking this leave.   FMLA leave can be for the birth of a child and that child’s care (maternity leave); for your own serious health condition; or to care for a child, spouse or parent who has a serious health condition.

There are, however, a few other tidbits you should be aware of:

  • After advising your employer of the possible need for medical or maternity leave, your employer has 5 days to provide you with a copy of the Notice of Eligibility and Rights & Responsibilities Notice;
  • If your employer interferes or deprives you of the right to take FMLA leave, a legal claim can be brought against your employer.  The law does not require a showing of “intent” to successfully bring a legal claim asserting FMLA “interference”;
  • The law prohibits retaliation by your employer after requesting or taking FMLA leave;
  • Supervisors can be sued in their individual capacities for violations of the FMLA; and
  • Requesting an extension of your FMLA leave may be a “reasonable accommodation” request under the Americans with Disabilities Act.

Employees need not choose between their health and their jobs.    The FMLA is an important law that provides American workers protections in the workplace, but it is only effective if employees know and assert their rights.

Staffing Agencies Can Be Responsible for Client’s Discrimination

According to the American Staffing Association, U.S. staffing companies employed an average of 3.32 million temporary and contract workers per week in the third quarter of 2015.    That means that many American workers have “joint employers” consisting of a staffing or employment agency, and the agency’s client – the actual company where the employee is physically working.   This relationship can be a little cloudy for both the worker and the employers when complaints of discrimination arise.   Who is the employer?   Who is liable for discrimination in the workplace?   As we see in the recent case of Burton v. Freescale Semiconductor,  both the staffing agency and their client may be liable.

Nicole Burton was employed by Manpower, a staffing agency, who placed her at Freescale, a microchip manufacturer.   During her employment she inhaled chemical fumes, eventually seeking medical attention.   After her condition did not improve, she made a workers compensation claim.   Shortly thereafter, Freescale decided to terminate Burton, but waited about a month before advising Burton of her termination.    During this interim one month period, Manpower asked Freescale for documentation to support the termination, and Freescale began to generate “retrospective documentation” regarding performance problems.   In other words, it began looking for reasons to justify the termination after the decision to terminate was already made.   Manpower and Freescale officials also conducted a conference call to establish a “communication plan” regarding the termination.   Burton was eventually terminated for four distinct reasons – two of which were discovered after the decision to terminate was already made.

Burton sued both companies alleging claims of disability discrimination and workers compensation retaliation.    Manpower argued it was not liable, as the decision to terminate was made by Freescale.   Freescale argued it was not liable, as Manpower – the company who paid Burton’s salary, was her employer. The trial court agreed and dismissed Burton’s lawsuit.

On appeal, the Fifth Circuit Court of Appeals disagreed with both arguments and reversed the trial court’s dismissal.    The Fifth Circuit agreed that being a “joint employer” did not create automatic liability for alleged discrimination, but it utilized two commonly used tests to determine if a worker is an “employee” of a particular entity.    Freescale had the right to control Burton’s work, as they supervised her, had the ability to evaluate her performance and discipline her, and in this case, recommended her termination.   The court concluded Freescale was an “employer” that could be held liable under the discrimination statutes.

As for Manpower, the evidence in this case indicated that it was not a passive actor, but rather participated in the decision to terminate Burton.   Manpower was involved in a conference call with Freescale officials regarding Burton’s termination, created a “communication plan” with Freescale, and was involved in Freescale’s document gathering to “justify” the termination.  The evidence in this case created a fact issue as to whether Manpower knew or should have known about Freescale’s discriminatory conduct, and failed to take corrective measures within its control.

Manpower, like most staffing agencies, had anti-discrimination policies for their employees that prohibit discrimination by the agency’s clients.   In theory, these agencies should investigate and work with, or if necessary, take action against their clients to end the discrimination.  In reality, however, many employment agencies are hesitant to disturb the relationship that have with their clients for fear of losing business.   As the Burton case demonstrates, however, Manpower’s failure to promptly address the possible discrimination by one of its clients will wind up costing them.

“If we accept and acquiesce in the face of discrimination, we accept the responsibility ourselves and allow those responsible to salve their conscience by believing that they have our acceptance and concurrence. We should, therefore, protest openly everything . . . that smacks of discrimination or slander.”

Mary McLeod Bethune (1875 – 1955)