Wednesday, August 29, 2012

When Employees Engage in Political Activities

Recently, a federal judge in Virginia ruled that a litigant's action of clicking the "like" button on a Facebook page did not merit protection by the First Amendment of the United States Constitution.  The litigant, Daniel Carter, expressed his support for a candidate for sheriff.  However, the candidate was not his boss, the current sheriff, B.J. Roberts.  When Mr. Roberts discovered his employee's action, he told him to stick with him, not the opponent. 

After winning re-election, Mr. Roberts fired Mr. Carter and others.  Mr. Carter claimed that the termination was wrongful, and violated his free speech rights under the Constitution.  The court disagreed, concluding that the simple act of clicking a button did not merit 1st Amendment protection. 

I am amazed at this decision.  Of course Mr. Carter's actions were an act of speech.  It's not too much different than placing a sign in one's yard -- a simple act which conveys a message of support.  It's not unlike buttons worn for the 1956 presidential election -- I like Ike. 

What happens to an employer in California who takes action against an employee for expressing a political viewpoint?  Labor Code section 1101 prohibits an employer from preventing employees from participating in politics or from becoming a candidate for office.  Section 1102 prohibits an employer from threatening to fire an employee for adopting a particular political position. 

Moreover, it would be an unfair labor practice to take action against an employee for expressing affiliation with or taking action in favor of a union. 

I am also confident that many judges would consider clicking a "like" button on Facebook, or taking similar action on another social media site would constitute speech protected by the 1st Amendment. 

As the rhetoric heats up and the candidates demonstrate more rancor, employers can be sure that their employees will be emotionally engaged.  Employers can require employees to perform their work during work hours -- as opposed to engaging in political acts.  And of course, an employer can hold employees to standards of decency and civility in the workplace.  However, off the clock an employee is free to engage in protected political speech. 

"But what if the employee wears a political badge or displays a bumper sticker in the workplace?  Can I discipline him/her?"  I don't have enough facts to answer the question.  Sorry, you will have to call with specific questions.  This blog can only provide you with general guidance. 

Good luck and may the best candidates win!

Monday, August 20, 2012

Not All Is Well On Wisteria Lane -- A Desperate Housewife And A Desperate Lawsuit

Last week the California Court of Appeal ruled on the lawsuit between Nicollette Sheridan (Edie) and Touchstone Television Productions, the company that produced the TV show, Desperate Housewives.  Sheridan sought $20 million in compensatory damages as well as punitive damages.  Hard to believe that life behind the scenes could be as dramatic as life on camera. 

Edie sued alleging the company wrongfully terminated her employment.  According to the written employment agreement, the company signed Sheridan to a one-year contract with options to renew services for six seasons.  Touchstone renewed the contract for five seasons, but chose not to renew for the sixth season. 

Sheridan argued that Touchstone fired her because she complained that the show's creator, Mark Cherry, had battered her.  The case went to trial and the jury deadlocked. Touchstone moved the court for a directed verdict on the grounds that it did not fire her but just did not renew her contract for a sixth year.  The court refused and the company appealed. 

The Court of Appeal concluded that an employee cannot sue its employer for refusing to renew a contract.  Thus, whether or not the company's decision not to renew Sheridan for a sixth season was related to Sheridan's complaint against Cherry is not actionable as a tort. 

This has been the established law in California for many years.  I can't understand why the claim was not dismissed well before trial. 

It is important for employers to understand this distinction between termination of employment and non-renewal of contract.  When an employer exercises discretion and does not renew a contract, it is not breaching an agreement.  Nor is it engaging in wrongful termination.  Rather, the employment relationship ends as time expires.  This is why we recommend that employment contracts not extend for lengthy periods of time.  If an employer is dissatisfied with an employee's performance, or simply does not want to employ the worker any longer, the employer need only wait until the end of the employment period.  Such a provision can eliminate a claim, such as wrongful termination in violation of public policy. 

In this case, the Court of Appeal is allowing Sheridan to amend her complaint to articulate a claim based on section 6310 of the Labor Code.  This code section allows a person to prosecute a claim that she was discriminated against or discharged because she complained about unsafe working conditions.  However, this cause of action is limited.  The complaint must actually address an unsafe condition in the workplace.  It is questionable (in my opinion, unlikely) that Cherry's alleged action was an unsafe working condition.  Moreover, damages are limited to lost wages and benefits.  Section 6310 does not provide for attorneys' fees. 

Touchstone is in a good position in this case.  The primary claim has been eliminated.  Now Sheridan must allege a viable 6310 claim in order to move forward. 

Lawsuits can have happy endings?  Do TV soap operas ever have happy endings?  Do they ever end?

Wednesday, August 15, 2012

Accommodating Religious Practices in the Workplace -- Disney in the News

The Los Angeles Daily Journal, a legal newspaper, is reporting that Imane Boudhal is suing Disney, claiming that she was sent home three times without pay for wearing a hijab while working as a hostess at the Storytellers Cafe.  A hijab is a Muslim headscarf.  According to an attorney for Ms. Boudahl, there are or have been four other similar lawsuits against Disney.  (As a sidebar, if one employee has been successfully represented by a lawyer, every other worker with a gripe tends to gravitate to the same lawyer.) 

This lawsuit raises the issue of what an employer must do in order to accommodate workers' religious beliefs and practices. 

Title VII (federal law) and the California Fair Employment and Housing Act ("FEHA") both prohibit an employer from discriminating against an employee based on religion.  These laws also require employers to make reasonable accommodations that would allow employees to exercise their religious believes and engage in religious practices.  HR professionals will recognize the language "reasonable accommodation" which is a phrase often discussed in the context of disability discrimination. 

An employer is required to provide a reasonable accommodation to an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.  The issue of "undue hardship" is another concept with which HR professionals are familiar when dealing with disability discrimination.  However, this term means different things in these two contexts. 

For disability purposes, undue hardship means significant difficulty or expense.  In fact, employers recognize that proving undue hardship for disability purposes is extremely difficult.  Most employers avoid that issue because it is often a losing battle. 

For religious purposes, undue hardship means more than a de minimus cost or burden.  Wow!  According to the dictionary, de minimus means "so minor as to merit disregard."  (  Factors considered include the cost of the accommodation in relation to the size and operating costs of the employer, and the number of persons who need a particular accommodation.  Undue hardship results if an employer is required to pay overtime or hire more persons in order to accommodate religious practices.  Undue hardship is also created if the accommodation infringes on other employees' job benefits, jeopardizes safety, or reduces efficiency and productivity. 

It is interesting to me that the duty to accommodate religious beliefs is a lesser duty than accommodating disabilities.  The practice of religion is expressly protected by the federal and state Constitutions.  It seems to me that with express constitutional protection should also come a higher duty than to accommodate conditions protected only by statute.  I have felt as though that is due to the hostility by some to religion.  It is very evident in today's society that a group of persons is attempting to prevent those with religious beliefs from participating in the political forum.  But that is the subject for a future blog. 

Of course, every case will be examined based on its own merits.  Nevertheless, hopefully an understanding of these basic principles will help employers understand their obligations with respect to accommodating employees' religious beliefs and practices. 

Monday, August 6, 2012

Medical Examinations for Applicants -- Penske Takes It on the Chin

The Department of Fair Employment and Housing ("DFEH") has announced a $450,000 settlement with Penske Logistics on behalf of 13 delivery drivers.  Penske took over delivery of the Fresno Bee when the newspaper outsourced that job.  Drivers who had been working for the Fresno Bee for years were required to apply for a job with Penske if they wished to continue working. 

Penske then compelled the driver-applicants to submit to medical examinations.  Even though they had been performing the job competently for years, the 13 drivers did not receive satisfactory scores on their examinations.  Thus they were not hired by Penske. 

According to the DFEH, Penske asked drivers to disclose non job-related physical conditions.  Penske also asked other specific medical questions such as whether applicants had diabetes or high blood pressure.  Applicants were further required to show their ability to achieve a "medium-heavy" strength rating, even though these drivers' duties did not include strength activities of this level. 

This case illustrates important points for employers.  First, don't make medical inquiries that are unrelated to job performance.  Asking general questions such as "Describe your medical conditions" is not an appropriate question. 

Second, when designing a  test to determine whether or not an applicant can perform job duties, make sure those tests relate to the job duties.  This is where employers should partner with a competent medical facility to design tests that mimic the activities of the job.  Whether the information is gathered in question format or by performing agility or physical tests, make sure the information is relevant to job duties. 

I often see a third issue arise whenever an employer has an applicant provide medical information.  The medical facility may provide the employer with the applicant's entire file.  It may include information such as an applicant's general medical history.  It may disclose a condition that has no bearing on the applicant's ability to perform. 

Once the employer has this information in its possession, it is difficult to argue that a decision not to hire the applicant was unrelated to the information in the medical file.  What employers should do is ask the medical provider to answer whether or not the applicant can perform the job duties.  If the applicant cannot, then ask the medical facility to identify what accommodations might allow the employee to perform the job.  In this way, by obtaining limited information, the employer has a lesser risk of facing a lawsuit related to improper medical inquiries. 

Friday, August 3, 2012

Workplace Hotheads -- Can They Be Sued?

The ABA Journal published an article about a news columnist in Alaska who responded to an inquiry by a law firm employee  who wants to sue her boss.  The article raises two very important questions -- Whether an employee can sue his/her boss for being a jerk; and on where should a person go for legal advice? 

The staffer feared one of her lawyer bosses who demanded his work be performed first.  She already had two priority projects on her desk from other other two "diva" bosses.  (By the way, who would you consider the diva at our law firm?)  He made a fist, put it close to her nose and demanded action.  When she tried to leave, he blocked the door and told her to sit down and complete his project. 

So what do you think?  Can she sue?  If so, under what theory?  Is this sexual harassment?  Is the action based on gender?  Was the act sufficiently serious?  The act probably didn't constitute battery since the diva did not touch her.  However, was it assault?  Could it be intentional infliction of emotional distress, which requires proof of conduct beyond anything tolerated in a civilized community? 

And if she could sue, would a lawyer take the case?  What are the damages?  There was no physical damage.  What is the emotional scarring worth?  And are attorneys' fees available? 

Interesting questions that I answer regularly in my legal practice.  Employers may act poorly, rudely, unprofessionally.  But is it legally wrong?  Can the action lead to a lawsuit?  These are questions I help my clients evaluate. 

I would never condone going after a person with clenched fists.  (By the way, a similar event happened to me on a job some 14 years ago.  It did not result in any physicality, but the experience was very unpleasant [although I could have taken him].)  What I have learned from my own experience and experiences of clients in this position is that when these unpleasant incidents with a senior level employee occur, there really is not a viable future for the victim at that workplace.  Yes, there may be a viable lawsuit in given the appropriate circumstances.  And a company should take serious action against anyone exhibiting physical or mental intimidation or violence.  Nevertheless, the victim won't ever be happy in that environment.  It's time to start looking for other opportunities. 

I can also say from very personal experience, that other opportunities exist.  You can find them.  You can create them.  The best professional decision in my life came when I created one of those opportunities and started this law firm with two lawyers, Bob Fishman and Michael Goldring, who I trusted and admired.  (I still do.) 

What about the second question -- who is a good source for legal advice?  I'll tell you this, it's not the newspaper.  It's not your neighbor.  It's not another business advisor.  It's not even a lawyer at a cocktail party.  It's a lawyer who you trust, and with whom you create a professional relationship.  That lawyer will take care of you. 

I tell my clients I want to be their attorney for the next 20 years.  (Yes, someday I want to retire.)  And after I am gone, I hope they will use my younger colleagues for legal advice.  You can bet that if I want a client to call me when issues arise over the next 20 years, I will do my best to treat them with respect and courtesy, and to provide the best in legal advice.  That's a promise in our office.