Dorsey Work Watch

Sweeping amendments to New York’s whistleblower law took effect in 2022.  The law was amended to provide significantly greater protection from retaliation for individuals who raise concerns of employer wrongdoing.  The amended New York Labor Law § 740 is now one of the broadest and most powerful whistleblower laws in the U.S. How has New York’s whistleblower law changed? New York’s whistleblower law was broadly expanded in 2022.  Prior to the 2022 amendment, employees were protected from retaliation only for reporting (internally or externally) actual violations of law involving (1) “a substantial and specific danger to the public health or safety;” or (2) healthcare fraud.  Now, whistleblower protections are available to both employees and independent contractors who raise concerns about any activity, policy or practice that they reasonably believe violates any law, rule or regulation.  Proof of an actual violation of law is no longer necessary, and violations need not relate to public health or safety.  All that is required is a reasonable belief that a violation of any law has occurred.  The amendment also expands the categories of protected individuals as well as the potential remedies available to litigants. Who is protected? The amendment expanded the definition of “employee” to include “former employees” and “natural persons employed as independent contractors . . . who are not themselves employers.” What qualifies as protected activity? Under the amended statute, employers may not take retaliatory action against an “employee” for: Disclosing or threatening to disclose to a supervisor or a public body an activity, policy or practice of the employer that the employee reasonably believes violates a law, rule or regulation (including executive orders and judicial and administrative decisions), or that the employee reasonably believes poses a substantial and specific danger to the public health or safety; Providing information to, or testifying before, any public body conducting an investigation, hearing or inquiry into any such activity, policy or practice by the employer; or Objecting to, or refusing to participate in, any such activity, policy or practice. Employees are protected from retaliation for taking such actions regardless of whether they are acting within the scope of their job duties. What constitutes retaliation? The definition of “retaliatory action” was also expanded.  It now encompasses adverse action taken by an employer to “discharge, threaten, penalize, or in any other manner discriminate against an employee” for exercising his or her rights under the statute, including: (i) adverse employment actions or threats to take such adverse employment actions against an employee in the terms or conditions of employment, including but not limited to discharge, suspension or demotion; (ii) actions or threats to take such action that would adversely impact a former employee’s current or future employment; or (iii) contacting or threatening to contact U.S. immigration authorities regarding the immigration or citizenship status of an employee or the employee’s family. Has the notification and cure requirement changed? The notification and cure requirement poses a significant limitation to whistleblower actions.  Prior to the amendment, before seeking whistleblower protection for providing information to or testifying before a public body conducting an investigation, hearing or inquiry, the employee must have made a good faith effort to notify a supervisor and afford the employer a reasonable opportunity to correct its actions.  The amendment adds numerous exceptions to the notification and cure requirement, including when: There is imminent and serious danger to the public health and safety; The employee reasonably believes that reporting the suspected violation would result in the destruction of evidence or concealment of the activity; The suspected violation could reasonably be expected to lead to endangering the welfare of a minor; The employee reasonably believes that reporting to a supervisor would result in physical injury to the employee or to others; or The employee reasonably believes that the supervisor is already aware of the activity and will not correct it. Notification is no longer required under any of the above circumstances. Is there a publication requirement? The New York State Department of Labor issued a model notice for employers.  Employers are required to post a notice of employee rights under the law in a conspicuous and well-lit area of the employer’s premises that is customarily frequented by employees and applicants.  For fully remote employees, this notice should be provided by email and included in remote employees’ standard onboarding documentation. Has the statute of limitations changed? Yes, the statute of limitations has been extended.  Employees and contractors may now institute civil litigation under the statute within two years of the alleged retaliatory action, up from one year prior to the amendment. What new remedies are available? The amendment provides a right to a jury trial and expands the potential remedies available under the statute by adding front pay, civil penalties and punitive damages.  The remedies currently available under the statute are: Injunctive relief to restrain continued violation of the statute; Reinstatement, or front pay in lieu thereof; Reinstatement of full fringe benefits and seniority rights; Compensation for lost wages, benefits and other remuneration (back pay); Reasonable costs, disbursements and attorneys’ fees (attorneys’ fees may be awarded to the employer as well, “if the court determines that an action was without basis in law or fact”); A civil penalty not to exceed $10,000; and Punitive damages for willful, malicious or wonton violations.    

As many states progress through different phases of reopening, companies are preparing for their employees to return to work. Employers are also noting, however, that some states are seeing COVID-19 cases surge.  This has generated some concerns from employees who do not want to return to the work place. Can employers require employees to return to work if the employees are not comfortable returning based on fear of exposure to COVID-19 in the workplace? Often, the answer is yes.  Employers generally can require a non-high risk employee to return to work where there hasn’t been any cases in the employee’s particular workplace. But as with many broad employment questions, there is no universal answer that covers all cases and employers must look to both federal and state law, and in some instances, local law, to determine whether a particular employee can be required to return to work. For example, under federal law, employees can refuse to work under certain, narrow circumstances. In these situations, employers must proceed with caution or they risk retaliation claims. It is important to note, however, that a generalized fear of infection alone is usually not enough to permit an employee to refuse to return to work. Employers must be aware of COVID-19 related protections existing for employees and understand what rights they have in the face of an employee’s refusal to return to work. This post does not cover alternative avenues such as local, state, and federal law governing protected leave, including the Families First Coronavirus Response Act. These rights and protections vary with each state, so employers should review the most recent return-to-work orders. Americans with Disabilities Act Per EEOC guidance, the Americans with Disabilities Act (“ADA”) requires an employer to work with employees at high risk of serious health complications related to COVID-19 (as determined by guidance from the Centers for Disease Control and Prevention (“CDC”)) to provide reasonable accommodations like teleworking or taking leave. To avoid the risk of discrimination claims, employers should communicate alternative options to all employees, rather than directly reaching out to employees who have not yet requested an accommodation. As a general matter, employers should work with employees and offer alternative work arrangements where possible. Occupational Safety and Health Act Employers who are following current guidelines for safe workplaces – under the CDC or state health departments – would generally be able to require non-high risk employees to return to work without running afoul of safety standards, especially where there have not been any cases of COVID-19 in the employee’s workplace. The Occupational Safety and Health Act (“OSHA”) creates a general duty for employers to maintain safe workplaces and mitigate any health or safety hazards but as of the date of this posting has not issued any regulations specifically covering COVID-19 safety requirements.  Importantly, for “medium risk” employers (such as retailers and other workplaces open to the public) OSHA’s Interim Enforcement Response Plan for Coronavirus Disease 2019 focuses on incidences of actual exposure rather than the general risk that someone might catch COVID-19 in the workplace because the disease is spreading in the community. https://www.osha.gov/memos/2020-05-19/updated-interim-enforcement-response-plan-coronavirus-disease-2019-covid-19. However, it is important for employers to understand that under certain narrow situations, OSHA also permits an employee to refuse to perform unsafe work. The employee may refuse to perform a specific task when all of the following conditions are met: (1) the employee “asked the employer to eliminate the danger, and the employer failed to do so”; (2) the employee “genuinely believe[s] that an imminent danger exists”; (3) “a reasonable person would agree that there is a real danger of death or serious injury”; and (4) the urgency of the hazard does not allow correction through “regular enforcement channels, such as requesting an OSHA inspection.” National Labor Relations Act Employers must also be on the lookout for employee conduct that constitutes protected concerted activity under the National Labor Relations Act (NLRA). Section 7 of the NLRA guarantees unionized and non-unionized employees the right to engage in concerted activities for the purpose of “mutual aid or protection.” In the context of COVID-19, protected concerted activity could occur when two or more employees (or one employee acting on behalf of others) address issues such as safe working conditions and the steps their employers are taking to prevent the spread of the virus. State Guidance and Return-to-Work Orders In Minnesota, all critical and non-critical sector employees who are able to work from home must continue to do so. (Stay Safe Minnesota). Emergency Executive Order 20-54 protects employees for raising concerns about unsafe conditions related to COVID-19. The order extends existing state law protections to COVID-19: employers cannot discriminate or retaliate against an employee for exercising any right under the Minnesota Occupational Safety and Health Act. In contrast, California workers are protected by the state’s Resilience Roadmap because the stay-at-home order is still in effect. If an employer does not provide essential services or is not in an industry allowed to reopen in Stage 2 (or the current stage of the plan), an employee would have good cause to refuse to return to the workplace. Employers should also consult local public health ordinances. Some localities, like the City of Los Angeles, require employers to provide face coverings for all employees. Some states mandate additional protections for employees at high risk for severe COVID-19 complications. Washington Governor Jay Inslee issued Proclamation 20-46.1, in effect through August 1, amending Proclamation 20-05 to require employers to offer high-risk employees alternative accommodations. If alternative options are not feasible, the employee must be allowed to use accrued leave or seek unemployment relief while the employer maintains health insurance benefits. The order also prohibits employers from permanently replacing high-risk employees and requires employers to maintain high risk employees’ health benefits. Other states mandate employer responsibility for providing protective equipment to its employees. In New York, Executive Order 202.16 requires essential employers to provide face coverings to employees in direct contact with members of the public. Empire State Development also released guidance for determining whether a particular enterprise is subject to workforce reductions under relevant executive orders. If an employee works for a non-essential New York business that is not encompassed by its region’s current phase of reopening, they cannot be forced to come into work. Employers are encouraged to work with employees who have concerns about working safely under applicable state orders and federal guidance. Although an employee may bring safety or retaliation concerns directly to their local OSHA office or to the state department of labor, proactive efforts to discuss a safe workplace can help minimize this risk. Finally, it may behoove employers to understand when an employee could secure unemployment benefits for refusing to return to work.  Generally, a refusal to work disqualifies an individual from unemployment benefits.  But in the current COVID-19 pandemic, many states have relaxed the criteria to allow for continued benefits when the refusal to work is because of a personal situation exacerbated by COVID-19. Unemployment Insurance Benefits Minnesota The Minnesota Department of Employment and Economic Development (“DEED”) says that employees offered a suitable opportunity to return to work, and who are not subject to an exemption under Executive Order 20-05 or state law, may not continue receiving unemployment benefits. If an employee refuses a suitable offer of employment, they can be held overpaid for unemployment insurance benefits received. DEED clarified that if an employer cannot provide reasonable accommodations upon an employee’s request, they might still be eligible for unemployment benefits. Additionally, Executive Order 20-54 provides that the failure of an employer to implement a COVID-19 Preparedness Plan constitutes an adverse work environment that could qualify a complaining employee to receive unemployment benefits. Washington The Employment Security Department (“ESD”) released guidance stating that individuals receiving unemployment benefits must be available for “suitable work,” including any offer to return to previous employment after a layoff caused by COVID-19. Individuals must have good cause to refuse an offer to return to work and continue receiving unemployment benefits. Good cause may apply to those considered high risk by the CDC and those living in a household with a person at high risk. School or daycare closures, providing care for a family member, employer noncompliance with worksite safety guidelines, or a substantial change to the job may also be accepted as good cause. Employees may not refuse work and retain unemployment benefits because they make more on unemployment or because of a fear of returning to work without having good cause to refuse. California The Employment Development Department (“EDD”) released guidance emphasizing that employees that refuse to accept “suitable” employment when offered are ineligible for unemployment benefits. The EDD considers factors such as the degree of risk involved to the individual’s health and safety when determining if particular work is “suitable.” If an employer has complied with state requirements and safety regulations for reopening, an employee may not have good cause to refuse to return to work. If an employee indicates on their certification for continued benefits that they refused work, the EDD will investigate accordingly. New York If an employee refuses an offer to return to their previous position, they will likely lose eligibility for unemployment benefits unless they have good cause as defined by Section 593.2 of the Unemployment Insurance Law. Employees may not turn down offers of employment based on a general fear of exposure to COVID-19 and still receive unemployment benefits. (Returning to Work). However, in some circumstances an employee could continue receiving benefits if the employee’s situation meets Pandemic Unemployment Assistance (PUA) eligibility criteria. Employers that are following CDC and state and local guidelines regarding social distancing and other precautions in the workplace will often be allowed to require non-high risk employees to return to work when there are no cases of COVID-19 in the employer’s workplace. However, like so many employment related legal issues, the devil is in the details and exceptions abound. When employees refuse to return to work and challenge their employer’s ability to compel them to do so employers should consult with knowledgeable counsel to make sure they are on solid ground.

In the weeks since allegations began to surface regarding the sexually predatory behavior of movie mogul Harvey Weinstein, sexual harassment allegations (sometimes admitted and sometimes disputed) against powerful, prominent men have been a daily feature of the headlines, involving Oscar-winning actors, sitting and would-be senators, talk show hosts, and numerous other high profile figures. Allegations against the both the current President of the United States and one of his predecessors, while not new, have been the subject of renewed focus. On social media, the “#MeToo” campaign has featured numerous women coming forward with their experiences as victims of sexual harassment. While the effect of these developments is still evolving, clearly there have been changes in how sexual harassment is perceived and understood, particularly when the alleged perpetrator is not only powerful, but famous. That being said, for an employer assessing potential liability, has the legal landscape for sexual harassment and related claims really changed all that much? The impacts of this explosion of high profile episodes is potentially far reaching, even for employers far outside the political, entertainment, and media arenas where so many of the recent cases have emerged. Public awareness of sexual harassment issues in general is certainly more pronounced. In many (but not all) situations, the public has treated the allegations as credible, even when raised years or decades after the fact. Not surprisingly, there have also been downsides to the recent uproar, including regrettable attempts to blame or attack victims who have come forward. In one bizarre episode in connection with an ongoing political campaign, a woman apparently attempted to plant false allegations of harassment in the Washington Post, precisely so that they could be shown as false, thus undermining the credibility of the Post and, by implication, of other women whose accusations had earlier been reported there. But for employers, whether they are high profile media outlets or corner drug stores, sexual harassment involves legal duties and the risk of liability if those duties are not met. Those duties haven’t really changed. The law governing sexual harassment has been developed in state and federal courts for several decades. While the law continues to evolve in certain areas, the basic legal framework and key procedural requirements are well-established. When an employer is actually sued for sexual harassment, those rules, including mundane boring procedural requirements, can be the key to winning or losing the case. Two recent decisions illustrate the fact that the old rules still apply: In Tudor v. SE. Okla. State Univ., in the United States District Court for the Western District of Oklahoma, the plaintiff’s allegations implicated some cutting edge issues, but the case was decided using fundamental precepts of employment discrimination law. The plaintiff, a college professor, contended that Southeastern Oklahoma State denied her tenure application and then fired her because of her transgender status (she was transitioning from male to female). She also claimed that the University maintained a hostile environment, and that she was retaliated against for raising concerns in the first place. The University moved for summary judgment, but the court denied the motion. First, regarding a hostile environment claim, the issue was whether the plaintiff alleged a sufficient number of incidents, with sufficient severity, to establish “a work environment permeated with intimidation and ridicule.” In other words, was the environment bad enough to support a legal claim? The plaintiff relied not only on sporadic insults and comments, but also on the fact that every day over the course of a four-year period she had restrictions on which restroom she could use, how she could dress, and what make-up she could wear. She also noted that administrators persisted in using a male pronoun to refer to her even after she considered herself to be female. The court found that that was sufficiently pervasive to survive summary judgment and preserve her hostile environment claims for trial. The court also rejected a defense based on plaintiff’s alleged failure to take advantage of preventive and corrective opportunities at the University. The plaintiff successfully countered this argument by noting that at the time, the University did not have policies prohibiting discrimination on the basis of transgender status. Therefore, there was no effective internal redress available to her. The court also denied summary judgment on the plaintiff’s claim that the tenure denial and subsequent termination were discriminatory. The court had decided in a previous ruling that transgender status is protected under Title VII. In evaluating the evidence of discrimination, the court applied the familiar three-part framework: (1) plaintiff must demonstrate a prima facie case; (2) the employer must provide evidence of a legitimate non-discriminatory reason for the employment action; and (3) plaintiff must provide evidence that the asserted legitimate reason is actually a pretext for discrimination. The primary dispute concerned evidence of pretext, which the plaintiff satisfied by showing substantial procedural irregularities in the tenure decision, including a refusal to state reasons for the denial of tenure and use of a backdated letter to elaborate on rationales for the tenure denial. Finally, with respect to the retaliation claim, the court found sufficient facts to show protected conduct followed by an adverse employment action. The application of Title VII and other gender discrimination laws to transgender status is a new and disputed legal issue, but the framework used to analyze such claims is well-established, and the court applied it to determine that the case would go forward. In another recent case, Durand v. District of Columbia Government, decided by the United States Court of Appeals for the District of Columbia Circuit, the employer prevailed, also by relying on the validity of long-established legal requirements for such claims. The plaintiff contended that he was being retaliated against for prior participation in a large sexual harassment lawsuit that had been decided some years earlier. In dismissing the retaliation and retaliatory harassment claims, the Court of Appeals relied on plaintiff’s procedural failures, including failure to file a proper administrative charge of discrimination with the EEOC and failure to proceed in a timely fashion. The case also failed in part because it was based on employer actions that were not materially adverse to plaintiff’s employment status. Finally, plaintiff failed to show severe or pervasive harassment, which would be necessary to support a retaliatory harassment claim. Both of these recent decisions confirm that while public perception and understanding of sexual harassment may be experiencing a true revolution, in litigation both the employer and the employee must comply with largely well-established legal doctrines to determine who actually wins the case.

As a general rule, of course, Human Resources Departments and company management want to be – and should be – well-informed about issues in the workplace, including employees unhappy enough to have raised claims of discrimination or harassment. If key people at the company are unaware of such complaints, the employer might leave itself open to charges of sloppiness, indifference, or even tolerance of harassing or discriminatory conduct. But is it ever better not to know about an employee’s complaint? Two recent cases illustrate how ignorance can sometimes be bliss in employment litigation. When the employer is accused of retaliation, i.e., firing an employee because of his or her complaint, the employer may have a defense if the decision-maker did not know anything about the complaint, because the employer cannot retaliate based on something it does not know. Summary judgment based on lack of knowledge In both McKnight v. Aimbridge Employee Service Corp., Case No. 16-3776 (3rd Cir. October 26, 2017) and Esker v. City of Denton, Texas, Case No. 02-17-200003-CV (Tex. App. October 26, 2017), an employee complained of discrimination or harassment and was shortly fired thereafter. The employee then sued for both the original discrimination or harassment and retaliatory discharge, but in each case the retaliation claim was dismissed because the person making the termination decision had no knowledge of the discrimination or harassment complaint. Jamie McKnight was an African American food service worker at a hotel managed by Aimbridge. He felt that he was denied training opportunities and a desirable transfer because of his race, so he complained to the hotel’s general manager about discrimination and also filed a charge with the EEOC. He was given a negative evaluation, put on a development plan, and eventually terminated. But the Aimbridge supervisors who took these actions against McKnight were different individuals from the general manager to whom he had complained. At summary judgment, McKnight was unable to provide any evidence that the decision makers knew about his earlier discrimination complaints. In the absence of substantial, credible evidence to prove knowledge, the court held that McKnight could not possibly prove that the reason for his termination was his discrimination complaint. Summary judgment was granted. Wander Esker was a duty officer in the Denton, Texas police department. She complained to an HR employee that a co-worker had sent her inappropriate text messages and had tried to kiss her, but Esker refused to give details or disclose the name of the offending co-worker. The HR employee informed her that he needed more information in order to help. At about the same time, Esker’s supervisor noticed that she had apparently stolen a toy donated to the Police Department’s annual toy drive. He began monitoring her more closely and learned that she was claiming to have worked many hours when she was not at her desk. Esker claimed that the hours reporting discrepancies were an honest mistake, but the Police Department investigation concluded otherwise, and she was terminated. She claimed both sex discrimination and retaliation. Once again, the employee’s retaliation claim failed because the individuals to whom she had complained (two people in the HR department) were not the individuals who decided to terminate her. Esker was terminated by the Chief of Police. Even when she met with the Chief to discuss her termination, she did not bring up her harassment complaints in that meeting. Esker admitted in her testimony that she had no evidence that the Chief was aware of her harassment complaints. Because she was unable to provide evidence that the actual decision maker knew of her earlier complaints, and her retaliation claim was dismissed on summary judgment. Points to remember The cases illustrate the following key points: Identify the decision maker: both employers were able to prevail because they could clearly identify which individual or individuals had made the termination decision. In any case in which there is a claim of discrimination or retaliation, the focus will be on the decision maker, and the employer must be clear as to who that person is. From the employee’s perspective, follow through on complaints: Ms. Esker raised a complaint about sexual harassment, but refused to provide details or identify the individual involved. HR specifically told her that it could not do an investigation without more information, but she still declined to provide any. While it is not entirely clear from the case what would have happened had she provided more information, it is likely that a more thorough investigation into her complaint would have had a higher profile within the company, perhaps negating the defense that the Chief was unaware of it. Summary judgment is time to “put up or shut up”: whatever the specific issues are on a summary judgment motion, courts expect both parties to provide actual evidence in support of their position, not mere speculation or argument. The courts in both Esker and McKnight recognized the speculative possibility that the decision maker knew of the complaint, but they based their decision on the lack of actual evidence to that effect.

A recent decision from the Sixth Circuit Court of Appeals highlights the distinction between firing an employee for personal or politically expedient reasons (which may be entirely legal) and firing an employee because of his or her protected status or for exercising protected rights (which is typically illegal). The decisive question answered in this case was can an employer terminate an employee currently on medical leave if the motivation for the firing is distasteful but unrelated to the leave? In Mullendore v. City of Belding, Mich., the city council may have acted less than courageously by quickly firing a controversial city manager while she was out of the office for medical reasons and therefore not around to defend herself. But there was no real evidence that her medical condition actually motivated the firing (as opposed to permitting the council to fire her without having to face her), so there was no violation of the Family Medical Leave Act (“FMLA”). Margaret Mullendore was the city manager of Belding, Michigan, working for a city council whose operations “are fairly described as being somewhat fraught with political drama.” Mullendore herself was a somewhat controversial figure, having fired a city police officer who was later reinstated, generating vocal criticism of Mullendore’s original decision. Mullendore was also an at-will employee who could be terminated at any time by a vote of the city council. In November 2014, one of Mullendore’s supporters on the city council lost a recall election to a candidate who had already openly criticized Mullendore and urged a change in the city’s administration. The new representative quickly sent the rest of the council an email advocating Mullendore’s termination. Approximately a month later, Mullendore was forced to take time off from work due to an ankle injury that required surgery. Mullendore informed the city of her need for time off, although it was a point of dispute in the case whether she had actually invoked her legal rights under the FMLA. The city was aware of her plans to take medical leave and raised no objections, even purchasing a laptop for her to make it easier to work from home during her absence. However, at a city council meeting shortly after Mullendore’s leave began, the new council member moved to terminate her employment immediately, even though there was no agenda item regarding her employment for the meeting, and Mullendore herself was not present to defend her record. The motion passed, although at least one council member was clearly reluctant to proceed in that manner. Mullendore claimed violations of the FMLA, contending that she was fired for exercising her rights under that statute. This raised two key legal questions: (1) Whether Mullendore had in fact invoked her FMLA rights or whether she was simply taking a more informal medical leave; and (2) Whether the actual reason for her termination was her FMLA-protected leave. The district court, granting summary judgment to the city, found both that Mullendore had failed to properly invoke FMLA rights when announcing her leave and that there was no evidence of illegal motive on the city’s part, i.e., that Mullendore was not fired because of her alleged exercise of FMLA rights. On appeal, the Sixth Circuit affirmed summary judgment in the city’s favor, but only on the grounds that there was no evidence of illegal motive. The Court of Appeals found that there was a factual dispute as to whether Mullendore’s actions properly invoked the FMLA, but it did not matter, since there was simply no proof that taking FMLA leave was the actual reason for Mullendore’s firing. This is often the central issue in discrimination, retaliation and other statutory employment claims: Was the protected conduct or protected status of the employee the actual reason for the adverse employment action? Mullendore tried to rely on the fact that the action occurred while she was on medical leave, but timing, while important, is not everything. This was particularly true because the new council member who spearheaded Mullendore’s firing had announced his intention to do so even before her medical condition arose. The council may have found it expedient to get rid of Mullendore while she was not present at the meeting to defend herself, but that also does not prove illegal motivation: “At best, the evidence demonstrates that the members of the City Council terminated her when she was not at their meeting because it was personally or politically expedient to do so behind her back.” That was simply not enough. The case illustrates several key features of employment claims that require proof of motive: A credible bad reason for firing someone is not a violation of the law. The court’s description of the evidence places the city council in a somewhat poor light. They appear as obsessed with political “drama,” and terminating Mullendore “behind her back” is not a particularly courageous action. But the evidence strongly – indeed, decisively – demonstrated that political drama was the basis for Mullendore’s termination and that the timing arose from the desire not to confront Mullendore rather than from any animus towards the exercise of FMLA rights. The council does not look good in this case, but it did not act illegally. Suspicious timing is often not enough. Mullendore’s strongest point was probably that the firing occurred precisely while she was on a medical leave. She argued that this at least strongly suggested that the medical leave was the (illegal) motivation for her firing. But the city council was able to point to evidence that the termination was under consideration before the medical situation arose. This made the city’s version of events (a desire to terminate Mullendore behind her back) credible and merely suspicious timing was not enough to defeat summary judgment. Two grounds for summary judgment are often better than one. In the trial court, the city won the case for two separate reasons, both the failure to formally invoke FMLA rights and the lack of evidence of illegal motive. The Sixth Circuit did not agree with the first reason, finding that there was a dispute as to whether Mullendore had properly invoked the FMLA. But the second reason stood up to appellate review, and that one reason, the lack of motive, was sufficient to preserve the city’s victory in the case.

Use of profanity by employees, whether in the workplace, outside the workplace, or on social media, presents difficult legal issues for the employer, as highlighted by a recent Second Circuit Court of Appeals decision overturning the firing of an employee who engaged in a highly profane Facebook rant against a supervisor. Although an employer has a justifiable interest in keeping profanity out of the workplace, its interest does not overshadow an employee’s Section 7 protected rights to engage in concerted activity under the National Labor Relations Act (“NLRA”). In yet another NLRA-social media decision (see here and here), the court considered whether the vulgar and offensive language – directed at a supervisor – in an employee’s statement advocating for unionization is protected activity under the NLRA. See NLRB v. Pier Sixty, 855 F.3d 115 (2d Cir. 2017).  The court held that language was protected and overturned the company’s termination of the employee in question. Two days before a union election, an employee posted the following statement on Facebook: Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! The post was visible to the public for three days before the employee took it down. Company management saw the post before it was removed and terminated the employee. An unfair labor practice charge followed shortly afterward, alleging a violation of section 8(a)(1) of the NLRA. Section 7 of the NLRA guarantees employees the right to “self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  29 U.S.C. § 157 (emphasis added).  Section 8(a)(1), in turn, protects these rights by prohibiting employers from interfering with, restraining, or coercing employees in the exercise of these rights.  29 U.S.C. § 158(a)(1).  Ordinarily, an employer is prohibited from discharging employees for participating in union-election activity, and the employee’s Facebook post did explicitly call for a pro-union vote in the upcoming election.  But the protections of the NLRA are not absolute.  The National Labor Relations Board (“NLRB” or “Board”) has long held that an employee engaged in “ostensibly protected activity may act in such an abusive manner that he loses the protection” of the NLRA. See NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 837 (1984). Here, the NLRB had ruled in favor of the employee. The Second Circuit upheld the Board, agreeing that the statement came close to, but did not cross, the line.  The Board and the court applied a “totality-of-the-circumstances” test.  Although the court gave considerable deference to the Administrative Law Judge’s factual findings (which were upheld by the Board), employers can find some comfort in the court’s note that the post seems “to sit at the outer-bounds of protected, union-related comments.” The court provided several reasons for its decision: First, although the post can be characterized as “dominated by vulgar attacks” on the supervisor, the message addresses the workplace concern of how management treats employees, qualifying the post as “concerted activity for the purpose of collective bargaining.” Second, profanity among employees had been consistently tolerated by the employer, so it could reasonably be inferred that the employee was not fired for mere profanity, but for the protected, union-related content of the comment. Third, the employer had engaged in other unlawful, anti-union conduct as the election approached, including threatening pro-union employees with the loss of their jobs or benefits, and by implementing a “no talk” rule prohibiting discussion of union issues. Fourth, the court gave some weight to the fact that this post was made on Facebook—“a key medium of communication among coworkers and a tool for organization in the modern era,” and that the employee apparently (although erroneously) believed the post would not be publicly available. The court found that the Facebook posting was different from an outburst in the presence of customers. Accordingly, there are a few takeaways for employers to keep in mind. Implement a Clear, Written Policy. To effectively discipline employees for using offensive or vulgar language at the workplace, employers should have a clear written policy against profanity that informs employees of the rules regarding the use of profane or vulgar language in their interactions with colleagues and customers. The policy should specify the consequences for violations. Enforce the Policy Consistently and Uniformly. Employers should be consistent in enforcing any policy against profanity in the workplace. Past failures to enforce or to impose appropriate sanctions may tie the employer’s hands in future situations where a sanctionable activity may arguably be clothed with NLRA-protection. (Consistency would necessarily include, for example, applying the policy to profanity by supervisors and managers as well as by line employees. The employer’s tolerance of profanity by supervisors was cited by the court as proof of inconsistent enforcement.) Consistent and uniform enforcement of the policy is key. Be Careful Not to Limit Protected Activities. The enforcement of a policy against profanity or other inappropriate conduct must be balanced against an employee’s right to engage in protected activities under the NRLA. The employer’s other anti-union conduct in the Pier Sixty case was a factor in the decision. The Pier Sixty court has made clear that not all offensive language loses NLRA-protection. This decision confirms courts’ willingness to broadly construe the coverage of the NLRA, especially when considering employee activities on social media. Employers should carefully consider the context of potential profanity policy violations before taking disciplinary actions. When faced with the question of whether to fire an employee who uses vulgar and offensive language in a Facebook post directed at a supervisor and her family, you should first determine whether the subject matter of the Facebook comment touches on any workplace concerns. If not, there may not be NLRA- protected conduct. But if the subject matter—notwithstanding the vulgarity—is arguably related to working terms and conditions, you should take extra caution to make sure that any discipline will not run afoul of the NLRA. Consider the company’s practice with regard to policing profanity at work. If the company has tolerated profanity use among its employees in the past, you may not be in a good position to sanction an employee for a statement that, although offensive, may be protected under the NLRA.