As excitement builds for the March Madness Final Four on Saturday and the championship game next Monday, another exciting event is also rapidly approaching – Mintz Levin’s Third Annual Employment Law Summit. And just as South Carolina, Gonzaga, Oregon and North Carolina have so far refused to go quietly from the NCAA tournament, one of the topics we’ll be covering is how to handle employees who resist efforts to manage their performance and conform their behavior to professional norms. This panel discussion will feature three superb guests moderated by Mintz Member Dick Block and promises to be a spirited and engaging event.
No matter how long you’ve played the game, administering a Reduction-in-Force or RIF is never easy. In fact, it is often painful not only because they are difficult to administer, but because of the toll it takes on the workplace generally and employees individually. Terminating a whole team, or worse, an entire division of teams, is incredibly difficult for all those involved. Game planning and proper execution are critical. C-R-I-T-I-C-A-L. Employers need to be prepared so they do not give away easy lay-ups to employees in the form of discrimination lawsuits.
The Western District of Washington recently emphasized that the obligation under the Americans with Disabilities Act (“ADA”) to engage in good faith interactive dialogue when seeking an accommodation that will permit an employee with a disability to perform his or her job applies to employees as well as employers. In Huge v Boeing Co. (W.D. Wash. March 4, 2016), following a bench trial the court found the employee had failed to present evidence that her employer, Boeing Co., did not take reasonable measures to accommodate her Asperger’s Syndrome where the record showed the employee repeatedly engaged in obstructive and uncooperative behavior in response to Boeing’s proposed accommodations. Continue Reading Employee’s Failure to Participate in Interactive Process in Good Faith is Fatal to ADA Accommodation Claim, Says Washington Federal Court
Last week, the Massachusetts Supreme Judicial Court issued a seminal ruling in Bulwer v. Mt. Auburn, which clarified the type of evidence an employment discrimination plaintiff needs to defeat a summary judgment motion. In doing so, the SJC lightened plaintiffs’ burden of proof concerning pre-textual terminations and may have changed the rules of the game for Massachusetts employers and employees alike.
In Howard v. Hertz Global Holdings, Inc., a Hawaiian Federal Court found that Hertz Rent-a-Car could not be held responsible for its employee’s Facebook comments about one of its customers. While employers should welcome the outcome, it did turn on the facts, and could have produced a different result under different circumstances. Employers therefore, should consider installing safeguards to ensure proper social media use by their employees.
If you follow my corporate divorce series, you are familiar with my affinity for the employment-as-marriage metaphor. I’ve already examined how employment relationships end or should end. But I have yet to address an employment metaphor relevant to annulments.
Unlike divorce, which is the judicial dissolution of a legal marriage, an annulment is actually a judicial (and sometimes also religious) decree that the marriage was never valid in the first place. Typically an annulment is based on a fundamental legal flaw, such as fraud or marrying close kin or some other core defect that goes to the heart of the marriage contract. An annulment declares that the “marriage” is treated as if it never existed, provided a core reason exists to nullify it.
So what, if anything, annuls an employment contract?
In a case reminiscent of the Curb Your Enthusiasm episode where Cheryl leaves Larry, forcing their friends to choose post-split allegiances (to Larry’s dismay, Ted Danson, the Funkhousers (Super Dave Osborne and Blossom) and even restauranteur Primo, all chose Cheryl), an employer, upon hearing of co-worker spouses’ impending divorce, felt compelled to choose sides and terminated the husband’s employment while retaining the wife.
That case, Smith v. Millville Rescue Squad, in which the plaintiff husband alleges that he was a victim of unlawful marital status-based discrimination under New Jersey’s Law Against Discrimination (LAD), is currently before the New Jersey Supreme Court, which heard oral argument last week. The facts of the case are fascinating and worth a read, but let’s focus on the salient legal issue: how to define “marital status” under the LAD.
We are often asked what, if anything, employers should tell an employee about the reasons for the employee’s termination, especially if the termination is abrupt.
We tell employers to tell the truth.
A recent Colorado federal court decision serves as a good reminder to employers on how not to obtain a release of claims from a terminated employee. For starters, don’t tell the employee her job is being eliminated and then run an advertisement seeking to fill her position. Actions like those may serve to invalidate the release of claims you obtained from the employee.
At first glance, Stanziale v. MILK072011, looks like someone suing over a bad expiration date and conjures up images of Ron Burgundy proclaiming “milk was a bad choice.” But in actuality Stanziale is much more interesting: it answers whether one can breach their fiduciary duty by exposing an employer to a claim under the aptly-named WARN Act, which requires employers to tip off their workers to a possible job loss.