Check Your Employee Handbook

The National Labor Relations Board Administrative Law Judge upheld a decision of an employer to terminate an employee because of his Facebook postings.  First, the BMW salesman made comments on his Facebook page that he didn’t agree with the company’s choice of cuisine to be served at the dealership’s customer event – - hot dogs and chips!  He was concerned the menu selection did not match the luxury of the product being sold.  Believe it or not, this was a protected activity.

 However, his next post was not protected, and got the salesman fired.  It seems he was at the dealership when an accident at the Land Rover dealership across the street (also owned by the same dealer) occurred.  A 13 year old boy, a customer’s son, was allowed by another salesman to sit behind the wheel after a test drive.  Unfortunately, the young man knew how to put the Land Rover in “ Drive.” The boy floored the gas and ended up in a pond after running over Dad’s foot and a wall.  The BMW salesman took pictures and posted them on his Facebook page with some ‘not so nice’ comments about what his co-worker had allowed.  This was not protected activity.  He was terminated by his employer for the second posting. He then filed a claim with the National Labor Relations Board.  

When the NLRB was investigating this case, they took a good look at the employer’s policies and took issue with the one on, of all things, Courtesy! According to the NLRB’s decision dated September 28, 2012, the dealership’s policy read as follows:

 “Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

The Board’s decision said, “An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.”  And, that the words, ”disrespectful,” and  “language which injures the image or reputation of the Dealership,” as being part of the protected concerted activity that allows employees to discuss terms and conditions of their employment in accordance with the National Labor Relations Act.  In this case, the NLRB actually ruled that the wording of the employee handbook requiring courtesy was a violation of the employees protected activity.

Several other cases are pending before the NLRB involving employment handbook policy wording that is allegedly in violation of the National Labor Relations Act.   It is always wise to seek legal counsel when writing or revising your employee handbook to make sure you have taken every possible implication into consideration.  The NLRB certainly will!

New FDIC Regulations Can Cost You Your Job

Imagine you are a long-time employee in good standing with a major bank, but nearly 50 years after a minor mistake you made as a teenager, you suddenly find yourself out on the street.

 Apparently, that is the story of a 68-year old employee of one of the top 3 banks in the U.S.  The employee was called into the vice president’s office and terminated immediately after 7 years of successful work with the bank. The crime you ask? It seems that in 1963, the bank employee put a cardboard dime into a Laundromat washing machine. The future bank employee was arrested and spent 2 days in the county jail. 

     Why would a bank fire someone over such a minor infraction, committed decades ago? Turns out, the bank had no choice, thanks to new regulations passed as a result of the near collapse of the financial system in 2008. The law in question is contained in Section 19 of the Federal Deposit Insurance Act. The expanded law prohibits institutions backed by the Federal Deposit Insurance Corp. from employing anyone who spent a day or more in jail for a criminal offense. That includes, unfortunately for the employee in question here, 2 days for stuffing a cardboard dime into a washing machine in 1963. The bank faced fines of one million dollars per day if they kept the employee on staff after finding out about his conviction.

    Unfortunately, rather than rooting out white collar criminals, the law has fallen mostly on lower level employees, who committed minor crimes in their youth, and lost a career when the financial institution employer found out. This scene has been repeated so often, Congress provided for a path back to employment for these workers if the crimes were small enough. However, the process is arduous with forms, hearings, and advisory panel decisions. 

     If you are a former employee of a financial institution who has been terminated as a result of these new FDIC regulations, contact a local employment attorney who can expedite the process of approval for the exemption to the new regulations.

Fired For Going to Rehab?

For employees faced with substance abuse issues, the decision to check into a rehabilitation center is never easy. How will the employee/patient survive financially while out of work? Faced with the need to attend drug or alcohol addiction treatment, either as a resident or on an outpatient basis, most people will be unable to continue working in the interim. Maintaining a job during rehab is a big concern for many people; from all walks of life.  Holding onto a job may seem more important than rehab, but failing to get treatment usually does not end well for the addict or alcoholic. Untreated substance abuse follows its victim and his or her problems pile up on them in rapid succession. Most who decide against treatment eventually get fired or destroy their career path. So, what is the best way to handle the issue of substance abuse treatment with one’s employer?

After all an employer is rightly concerned about the employee's substance abuse and possible absence from work for treatment. The employer is faced with being shorthanded while the employee is in treatment. In most cases, in am employment-at-will jurisdiction absences or active drug or alcohol use/abuse can often be a lawful reason for firing an employee. For example, if an employee misses work for several days as a result of addiction, his or her job would not be protected.

Many employers have confidential Employee Assistance Programs (EAP) with policies that allow for employee retention after substance abuse treatment. However, employers are not required to have such programs. For employees with substance abuse issues, the Family and Medical Leave Act (FMLA) can be of assistance. The FMLA provides covered employees of covered employers with up to 12 weeks of leave every 12 months in order to handle a serious health condition that prohibits him from working. This includes addiction treatment.

The employer is required to return the employee to the same or similar position to the one held at the time the leave began. However, the FMLA applies only to companies that employ fifty or more employees. Additionally, to be eligible, the employee must have worked for 12 months for the employer and completed at least 1250 hours of employment in the period leading up to the FMLA leave.

If substance abuse is an issue for you, take care of yourself and realize there is hope in the form of both employer sponsored programs such as the EAP, and consider exercising your rights under the  FMLA.  Also, remember that a recovering (and not currently using) drug addict may be covered by the Americans With Disabilities Act (ADA) which prohibits discrimination against employees or applicants on the basis of disability.  In certain cases, a former drug user may be a qualified individual with a disability.  The ADA covers employers with 15 or more employees.  Please contact an experienced local employment attorney if you feel your rights under the FMLA or the ADA are being affected by your employer. 

Too Young To Experience Age Discrimination? Maybe Not…

When exactly does age discrimination begin to creep into the workplace? A recent survey of 900 senior level executives by career counseling firm Gray Hair Management found that age discrimination for mid and senior level management positions can begin just after age 40.  24 percent of these executives knew of cases in their respective companies in which they believed men and women in their 40’s had been passed over for promotions solely due to their ages.  A surprising 73 percent of these executives believed that they themselves had missed job opportunities because of age discrimination.

Age discrimination has been unlawful in the U.S. since 1967. Work experience is of great importance, but over 80 percent of the executives surveyed responded that experience works only to a certain point. Then, in their opinion, age plays more of a role in hiring than experience. Over that past decade, especially during the economic downturn, many mid-level managers found themselves staring at unemployment for the first time after working decades for the same company. North Carolina has been hit especially hard by imported goods, which have virtually ended textile and furniture manufacturing in the state.

Mid-career workers have the most difficult time finding new positions, and when they do, it is at a substantially reduced rate of pay and benefits. Unfortunately, companies looking to cut costs often target long-time workers that have seniority and higher pay levels. Buzz words such as “staff reductions”, “cost management plan” “corporate reorganization” or “job eliminations” are often used. Then they hire replacement workers at much lower pay levels. 

If you believe that you have been subjected to age discrimination, you have to file a charge with the US Equal Employment Opportunity Commission (EEOC) within either 180 or 300 days of the unlawful act.  However, you should consider consulting with an experienced employment attorney prior to filing with the EEOC.  Why? Because the EEOC will not act as your advocate; an attorney will.

For more information on the EEOC, you can visit its website by clicking here.

Job Protection for Returning Heroes

I previously posted about the employment rights of service members.  I also want to point out that reservists are protected as well.  Reservist veterans returning from deployments in Iraq and Afghanistan have a special set of rights granted to them by the federal government to insure that those who have sacrificed so much for the freedoms we all take for granted, are able to go back to work, and not be penalized for the time they spent deployed and away from their jobs. Returning veterans are guaranteed the same status and rights at their workplace as any non-military employee who has been on leave or furlough. These rights are protected for five years while deployed.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) safeguards the rights of service members in several ways. First, USERRA requires that returning reservists are placed into the position they would have attained if they had remained on the job during employment. This “escalator clause” as it is called guarantees “the same seniority, status and pay, as well as other rights and benefits determined by seniority.” If additional training is needed for the veteran to go into the escalator job, requires that reasonable efforts be made by the employer to help returning service member employees to “refresh or upgrade their skills to help them qualify for reemployment.” USERRA states that the employer of a returning reservist must provide an alternative job, if the service member cannot qualify for the escalator position.

USERRA provides for our wounded warriors. USERRA requires employers to make reasonable efforts to accommodate the disability. If a service member is still recovering from injuries received on active duty, they have up to two years to return to work or apply for reemployment.

If you are a returning reservist, thank you for your service. The sacrifices that you and your families made during your deployment deserve the highest respect from the rest of us. If you have had difficulty in returning to work upon your return, more information is available here.

A Little Unemployment Fraud Leads to Big Trouble

Last year, Morganton resident, Addie Thomas, was charged with 87 counts of unemployment fraud. Thomas reportedly continued to collect unemployment for two years while she was employed. According to Court documents, each time she filed for unemployment benefits she stated that she had no income. However, she allegedly earned an average of $300 a week working for a local doctor.  Under North Carolina General Statutes, reporting false information to the Employment Security Commission (ESC) is a Class 1 misdemeanor. An individual charged with the crime is punishable by up to forty five days imprisonment. Thomas, charged with 87 counts, could be facing up to 3915 days imprisonment. In addition, the ESC has the ability to collect all disbursements made during the fraudulent period. You can read the article here.

Unemployment benefits are paid to eligible employees who have lost their job without fault. Individuals seeking financial assistance must be actively seeking employment. Not all individuals who have lost their job have a right to receive unemployment benefits. The following link provides a list of "Ten Things You Should Know About the UI System When Filing Your Claim" and you can access it by clicking here.

Discrimination Case Revived

An Egyptian-born FBI supervisor, Bassem Youssef, filed a claim of discrimination after being passed over for several promotions. He claimed that after the September 11, 2001 attacks he was transferred to a job he was overqualified for due the circulation of false rumors. The alleged rumors were that Youssef had refused to carry out orders while he was stationed in Saudi Arabia because of his Muslim faith and that he had also worn Arabic head-gear. He claims that he was discriminated against due to these false rumors and thus filed suit. In 2008, a judge of the federal court ruled that Youssef’s failed to show that he had suffered a materially adverse action. Termination, demotion, or undesirable reassignment may constitute a materially adverse action depending on the circumstances. On appeal, the court revived Youseff’s discrimination claim and found that a reasonable juror could find that Youssef had suffered a materially adverse action due to the reduction in his job responsibilities. To read more click here.

Facebook: Post Your Status, Get Then Fired

A Texas state Court of Appeals affirmed the dismissal of Robert Sumien's wrongful termination and intrusion upon seclusion lawsuit against CareFlite. Sumien was one of two employees terminated for making offensive work-related comments on Facebook. The sole issue on appeal was whether CareFlite had intentionally intruded upon seclusion. The court stated that an unwarranted intrusion upon seclusion is proven by showing (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, or private affairs or concerns which (2) would be highly offensive to a reasonable person. Sumien failed to prove that CareFlite had intruded into his private affairs by viewing the comments he had posted on Facebook. Each of Sumien’s arguments failed because he did not directly address the issue of intrusion. For instance, Sumien argued that he misunderstood the privacy settings on Facebook and thus was not aware that CareFlite would be able to view the comments. The argument was irrelevant because he could not prove that his misunderstanding meant that CareFlite had intentionally invaded his privacy. The court concluded that “Sumien [had] not produce[d] more than a scintilla of probative evidence raising a genuine issue of material fact regarding his intrusion upon seclusion claim.” To read more on the case click here.

Two Wrongs Don't Give Her the Right

Landing a new job may not always be what you expect especially when your new supervisor begins to force himself on you. Knowing that your supervisor has the ability to terminate your employment, what would you do? Christina Mativa, a former employee of Bald Head Island Management, Inc. (BHIM), learned that "silent suffering" is not the answer. Mativa's supervisor made sexually explicit comments, left pornographic pictures on her desk, and ultimately forced himself on her. Rather than reporting the incidents, Mativa stayed silent. Surprisingly, before Mativa complained to her employer, her supervisor tattled on himself. BHIM took immediate action and ultimately terminated his employment. After her supervisor's termination, Mativa filed suit against BHIM alleging sexual harassment, retaliation, and constructive discharge. In her complaint, she claims that co-workers as well as management treated her differently after she participated in the investigation. BHIM denied the allegations and in response pointed out that they had taken immediate action and spoken with employees to insure Mativa was not treated differently. The Fourth Circuit Court of Appeals affirmed the lower courts grant of summary judgment and dismissed the case against BHIM.

Mativa made two mistakes which killed her own case. First, she could not prove that her employer had taken a tangible employment action against her. She was not demoted, terminated, or reassigned, which the court views as tangible employment actions. Instead she claimed her promotion was a tangible employment action because she allegedly received it due to her "silent suffering". Second, she failed to report the alleged harassment. The court declined to accept Mativa's explanation for not immediately reporting the incidents. Employees should take note that in order for an employer to enforce company policy they must first be notified of violations. For more information about this case click here..

Employment Protection for Service Members

I want to remind everyone that members of the Uniformed Services (our military personnel) are protected from discrimination and retaliation based on their military service. Protection is provided by a federal statute (law) referred to as the Uniformed Services Employment and Reemployment Rights Act (USERRA).  To find out more about the protection provided, please visit the US Department of Labor's USERRA information sheet which you can find by clicking here.

Recent Victory For NC State Employee

North Carolina State Employees who have met the requirements for "career status" may only be discharged for just cause.  That does not stop State agencies from firing employees in circumstances where there is no just cause.  For a recent decision in favor of a State Employee fired without Just Cause click here.

Third Stop, Loco-Motive Termination

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) ordered Norfolk Southern Railway Co. to pay $802,168.70 in damages to three ex-employees. During three concurrent investigations, OSHA suspected Norfolk had been terminating employees for reporting workplace injuries. Three ex-employees alleged the same sequence of events: employee was injured while at work, reported the injury to a supervisor, and soon after lost their job. This type of employer conduct is prohibited under the whistleblower protection provisions of the Federal Railway Safety Act ("Act"). Generally the provisions protect employees from retaliation for reporting workplace injuries. It is important for employees to notify their employers of workplace injuries in order for an employer to prevent similar incidents. Norfolk denied the allegations stating the employees had falsified their injuries or were terminated for incompetence. However, OSHA determined that Norfolk had retaliated against the three ex-employees and ordered the company to pay damages for doing so. The Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels stated, “[t]o prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable." To read more about the investigation click here.

OSHA is an agency within the Department of Labor. The agency was created to set and enforce workplace safety regulations. For more information about OSHA visit its website by clicking here.