Do You Know What a “sex-plus” Claim is?

February 24, 2014

What’s a “sex-plus” claim?

The Sixth Circuit Court of Appeals addressed only this question in Shazor v. Prof’l Transit Mgmt, decided last week. The plaintiff was an African American woman who was terminated. Her Title VII (Federal discrimination laws) lawsuit claims she was discriminated against based on her unique status as an African American woman. While the district court granted summary judgment in the employer’s favor, the Sixth Circuit reversed, permitting the case to move towards trial.

With regard to the “sex-plus” nature of the claim, the court stated as follows:” In the case now before us, both classifications- race and sex -are protected by Title VII. These characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure. And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds.”

Thus, discrimination claims can be based on an intersection of two or more protected categories. What does this mean for employers? Take good care to ensure employment decisions are based on legitimate reasons and don’t have anything to do with protected categories.

An additional note about the case worthy of mention: the evidence before the court consisted of, in large part, old emails from and between the plaintiff’s superiors calling her a “prima donna” and “a helluva bitch.” The court concluded these constituted circumstantial evidence of discriminatory behavior. So remember, be careful with emails! There is no such thing as permanently deleted. If you wouldn’t want to see it in court, don’t put it in an email, text message, or voicemail. Many of you have heard me preach this before.

Podcast: We had a tremendous response to this past Saturday’s podcast regarding an in depth discussion on the Marijuana Compassionate Use Act and its impact on the work environment. If you have not heard it please listen to it. It is only about 12 minutes or so and is important because of the changes that are coming on a national basis. Just as a reminder, go to and click on “Podcast.”

Two Articles: Union Overtime Payment Agreement & FMLA Proposed Changes

February 17, 2014

Collective Bargaining Agreement May Define When Overtime Pay Is Owed, Along With the Rate

A California court issued a favorable decision for employers regarding overtime pay obligations for employees covered by a collective bargaining agreement. In Vranish v. Exxon Mobil Corp., the plaintiffs, who were unionized production and maintenance workers at Exxon’s Santa Ynez facility, filed a putative class action against Exxon, alleging that Exxon failed to fully pay them overtime compensation required under California law. Pursuant to the applicable Collective Bargaining Agreement (CBA), the plaintiffs regularly worked an alternative workweek schedule of seven 12-hour shifts, followed by a period of seven days off. Also pursuant to the CBA, the plaintiffs were paid overtime compensation at the rate of one and one-half times their regular rate of pay for hours worked in excess of 40 per week or 12 hours per day. Overtime was not paid for hours worked between 8 and 12 in a workday.

Plaintiffs sued, alleging that Exxon’s failure to pay them overtime for hours worked between 8 and 12 in a workday was a violation of California’s daily overtime pay requirement set forth in California Labor Code section 510. The court rejected this argument, holding that the daily overtime provision of section 510 did not apply to plaintiffs because they were covered by a valid CBA and sections 510 and 514 exempt employees covered by a CBA containing its own overtime pay provisions. Plaintiffs did not dispute that the CBA was valid or that it provided for payment of overtime compensation in certain circumstances. However, plaintiffs argued that the CBA’s overtime provision was nonetheless in violation of California law because it did not provide for daily overtime for hours worked between 8 and 12 per day. According to plaintiffs, the exemption for employees covered by a CBA only applies if the CBA provides for overtime compensation at least at the rates and in the circumstances set forth in section 510. The court rejected this argument, citing the Division of Labor Standards Enforcement Policy Manual as well as opinion letters wherein the DLSE agreed that the parties to a CBA are free to negotiate and agree on the circumstances under which overtime pay is triggered and the rate at which it will be paid. As a result, section 510’s specific overtime requirements do not apply to employees covered by a valid CBA that contains its own overtime pay provisions.

The court alternatively held that even if plaintiffs’ interpretation of the CBA exemption was correct, Exxon still would not be liable for overtime compensation because the plaintiffs worked a validly adopted alternative workweek schedule providing for 12-hour shifts and, as such, were not eligible for overtime compensation for hours worked between 8 and 12 in a workday.

Proposed Changes to the FMLA

How about cutting the 50-employee requirement for covered employers in half?
So, if you have 25 or more employees working within 75 miles of one another, they would be eligible to take leave under the Family and Medical Leave Act.

And that’s just part of the Family and Medical Leave Enhancement Act of 2014, which Rep. Carolyn B. Maloney (D-NY) introduced in the U.S. House of Representatives last week. Eligible employees would also be able to “participate in or attend an activity that is sponsored by a school or community organization and relates to a program of the school or organization that is attended by a son or daughter or a grandchild of the employee.”

A covered employee could also use FMLA to “meet routine family medical care needs, including for medical and dental appointments of the employee or a son, daughter, spouse, or grandchild of the employee, or to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes.”

We’re talking major FMLA changes here. Keep an eye out on this one!

“Family and Medical Leave Enhancement Act of 2014”

Criminal Indictment Filed Against Employee For Taking Company Documents!

February 10, 2014

An employee took documents from her employer to support her discrimination claim and you won’t believe what happened next!

Criminal indictment, that’s what! Ouch!

The employee worked as a clerk for a public employer. The employee, a female, while still employed, filed a lawsuit against her employer alleging gender, ethnic, and sex discrimination. During the course of discovery, the employee produced hundreds of documents that she had taken from the employer in support of her claims; some were highly confidential and some may have been original documents.

Let’s back up for a second. In 2010, one state Supreme Court outraged employers by holding that the removal of documents from an employer in support of a discrimination claim was not per se unlawful. See Quinlan v. Curtiss Wright Corporation. Quinlan, an HR executive, had removed documents from the company in pursuit of her sex discrimination claim against Curtiss Wright. When one of the documents was used in a deposition, the company realized that she was taking documents and fired her. She amended her lawsuit to include a claim for retaliation. The judge instructed the jury that if it found she was terminated for removing the documents, it had to rule against her, but if it found that she was terminated for using the documents at deposition, then it had to rule in her favor. The jury awarded her nearly $5 million on the retaliation claim.

On appeal, rather than tossing the claim for retaliation, that Supreme Court established a seven factor test to determine whether the actions of removing the documents and using them in the lawsuit constituted protected conduct (how did the plaintiff get them, how valuable were they, was a policy violated, how did the conduct weigh against protecting the public interest of laws against discrimination, etc.). The court ultimately held that the trial court’s jury instruction was correct.

So since that time, employers have been hamstrung when an employee sues while still employed – they have to treat the employee exactly the same way because doing anything else exposes them to a retaliation claim, but at the same time, they fear that the employee is helping herself to documents that will help her claim.
Now, based on that Supreme Court decision, the employee probably thought, “hey – that’s the way to go. “ But she has now learned the hard way that nothing is that cut and dried. Upon learning of the employee’s actions (of removing company documents), the County Prosecutor for that local jurisdiction presented the case to the grand jury which then indicted the employee on the crime of theft.

The employee moved to dismiss the indictment based on Quinlan but the trial court denied the motion. Last month, the appellate division upheld that decision. The Court noted that the analysis of a motion to dismiss a criminal indictment is very different from an analysis of discrimination. The appellate division held that the state had made its prima facie case that an unlawful act had occurred. The court also found it significant that the was a public employee, although the Court in Quinlan never made such a distinction.

The appellate division specifically rejected the argument that the indictment should be dismissed because allowing it to proceed would have a chilling effect on plaintiffs in discrimination cases. In addition to noting that there are numerous other ways to lawfully obtain the relevant documents (which, by the way was one of Curtiss Wright’s arguments that the Supreme Court rejected in its case in 2010), the appellate court here refrained from announcing a sweeping statement of public policy: “To dismiss the indictment . . . would amount to the judiciary establishing a public policy that employees must be categorically insulated from criminal prosecution under the theft and official misconduct statutes if they take confidential employer documents to support potential discrimination claims. In short, unless the state Supreme Court of that jurisdiction grants a stay to review the case, the employee will now undergo trial for the crime of doing the same thing that Quinlan did in 2010. Of course, there is nothing to stop the employee from amending her civil action complaint to allege that the employer retaliated against her by referring the matter to the prosecutor.

Let’s think about this. Employers are rightfully concerned about employees taking supporting documents, while they are employed, that can be later used in a lawsuit against the employer. We get those calls all the time. It is hard to monitor this activity while the employee is currently employed. However, do you as an employer have a policy in place regarding theft of company property? Stealing company documents (not personnel files) may fit under this policy. Stealing is stealing. This is certainly food for thought.

One final note. Employers when terminating employees, as an example, need to watch employees very closely if the terminated employee makes a request to return to their workstation because they need to “pack up some things.” During the actual termination make sure that someone is disabling the employee’s access to the computer. After the termination someone needs to accompany the employee back to his/her desk and make sure no company property is being tucked away.

What Happens When An Employee States, “Fire Me!” Do You Oblige Them?

February 3, 2014

When Employee Taunts Employer via Facebook to “FIRE ME. …Make my day. . .” NLRB Memo Concludes the Employer Can Go For It!

The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to “FIRE ME … Make my day …”

The Charging Party worked for an employer with approximately nineteen employees. The Charging Employee along with a few current and former employees engaged in a private Facebook group message to organize a social event. The first hour of the exchange was non-eventful and focused on planning the social event. Things soon got interesting when a former employee made a joke. In response, the Charging Party mentioned that a former employee who had previously left was coming back to work and speculated that the employer may make the returning employee a supervisor. The Charging Party then attacked her current supervisor claiming he “tried to tell her something today and she said aren’t you the supervisor for mind and body … in other words back the freak off…” But Charging Party was not done there and added, that the employer was, and I quote, “full of shit … They seem to be staying away from me, you know I don’t bite my tongue anymore, FUCK … FIRE ME … MAKE my day …” Other than Charging Party, no other current employees took part in this portion of the conversation, but one did pipe up after Charging Party complained following a two hour lull that she had been deserted and there was no one to make herlaugh.” In response, the current employee said she made the Charging Party laugh and added “it’s getting bad here, it’s just annoying as hell. It’s always some dumb shit going on.” The Charging Party did not have anything substantive to add to this and no other current employee added anything else work-related.

As you might have guessed, one of the current employees included on the group message who did not say anything during the exchange showed the Facebook posts to the employer. The employer took Charging Party up on her request to be fired stating that it was “obvious” that she was not longer interested in working there, and indeed made her day.

The employee filed a charge alleging that her termination violated the National Labor Relations Act (“NLRA”) because her Facebook comments constituted protected concerted activity. In an Advice Memorandum, the NLRB Office of the General Counsel concluded that the employee’s Facebook message did not constitute protected concerted activity because they did not involve shared employee concerns over terms and conditions of employment. To understand this conclusion, it is important to understand the NLRB’s test for concerted activity, which is whether the activity is engaged “in with or on the authority of other employees, and not solely by and on behalf of the employee himself” and includes circumstances where employees seek to “initiate or to induce or to prepare for group action,” and where individual employees bring “truly group complaints” to the employer’s attention. However, comments made “solely by and on behalf of the employee himself are not concerted” are not protected and neither is “mere griping” by an employee who does not look forward to any action.

Applying this to the facts at hand, the Advice Memorandum found that the employee’s comments merely expressed an “individual gripe rather than any shared concerns about working conditions.” Specifically, the employee’s comments telling a supervisor to “back the freak off”; stated her employer was “full of shit”; and that her employer should “FIRE ME … Make my day” reflected individual “griping” and personal contempt rather than shared employee concerns over terms and conditions of employment. In addition, there was no evidence that any of the Charging Party’s coworkers interpreted the postings as shared concerns over their working conditions, not even the posting “it’s getting bad here, it’s just annoying as hell” because it was ambiguous and bore no relation to the Charging Party’s earlier comments.

This one is a win for employers, but employers are still reminded to be cautious when terminating an employee for the things they say on social media. This case demonstrates that even when an employee’s comments on social media are so outrageous that they literally ask the employer to fire the employee, the employer must still do some analysis to determine whether the comments may constitute concerted protected activity under the NLRA. So employers keep the NLRB’s standard for concerted protected activity in mind before terminating an employer for social media posts and ask yourself: (1) What was said? (2) Who said it? (3) Who commented on it or chimed in on the conversation? (4) Could it be considered shared employee concerns about terms and conditions of employment?

Note: California employers all need to know that an employer cannot fire an employee for complaining about working conditions. An noted above, her complaints were not about working conditions but rather about her personal contempt of her employer.