Monthly Archives: August 2014

OSHA Initiative Directs Untimely Whistleblowers To NLRB

By | Employment Law | No Comments

The Occupational Safety & Health Administration recently has entered into a referral agreement with the National Labor Relations Board (NLRB) under which it will direct workers wanting to pursue time-barred retaliation claims under workplace safety laws to the NLRB. This action follows the recent pattern of increased efforts to protect whistleblower rights across the board.

Under Section 11(c) of the Occupational Safety and Health Act (OSH Act), claims asserting retaliation against workers who complained about safety hazards must be filed within 30 days of the wrongful conduct. OSHA estimates that the agency dismisses hundreds of meritorious claims each year based solely on the fact that the claim was not filed within this short time frame. While the referral agreement does not alter this 30-day statute of limitations, OSHA agents now are directed to notify all complainants who file an untimely whistleblower charge of their right to file a charge with the NLRB.

Workers have substantially more time – six months – to file a charge with the NLRB, which investigates and evaluates charges of unfair labor practices. Such charges include complaints regarding any action that interferes with an employee’s participation in concerted activity for the purpose of collective bargaining or other mutual aid or protection, even if the employee is not in a union. Because of the “concerted” requirement, not all OSH Act retaliation claims will be viable at the NLRB. However, a number of claims are likely to fall within this scope, particularly instances of employer retaliation for group complaints concerning unsafe working conditions.

As a result of this new initiative, employers may expect to see an increase in unfair labor practice charges at the NLRB as many untimely retaliation charges that would be dismissed under the OSH Act are given a second life. To minimize this risk, employers should review their worker safety and anti-retaliation policies and procedures to ensure adequate protections are afforded to employee whistleblowers.

Seven Illegal Firings in an Employment At-Will State Like Kentucky

By | Civil Rights, Employment Law | One Comment

At-will employment means that an employee can be hired and fired at will, for almost any reason at all. It means an employer doesn’t have to follow specific rules to terminate you. If they wanted to fire an employee for something small, such as liking a different baseball team, or something more serious, such as making a decision based on false information, they can do it.

Here’s an example:

ABC Electronics believes that Steve stole computers from ABC’s warehouse, and so they fire him. A month later, it’s discovered that Bill actually stole the computers. He admits to it, the police are notified, and Bill is arrested. There’s no doubt that Steve didn’t steal the computers. He then files a lawsuit saying he was fired illegally.

However, the court will say that even though Steve was fired for a reason that was later found to be wrong, he was not fired illegally. That’s the issue with being fired in an at-will employment state like Kentucky. The law says that as long as an employer has a good faith basis to believe their reason for firing, they’re justified for doing it, even if they are ultimately proven wrong.

There are some exceptions though. There are a few reasons under the Kentucky Civil Rights Act that a firing can be illegal.

1. Race

In Kentucky, it’s illegal to fire someone because of their race. The statute only states ‘because of race.’ There is no specification as to what race. Therefore reverse discrimination is also applicable. If an employee is fired because he or she is white, the case is considered a wrongful discharge, just as if the employee were black, Asian, or Hispanic.

2. Age

To file for age discrimination, the employee must be 40 or older. Someone who is 39 would not qualify. There is no discrimination for being “too young.”

3. Gender

An employer cannot fire or refuse to hire an employee because of their gender, but that comes with an exception. In Kentucky, as in most states, it is still legal to fire an employee because they are transgendered. Despite everything being done in employment law, this does not violate the Kentucky Civil Rights Act.

Similarly, it is not illegal to be fired because of sexual orientation. It is possible for someone to be fired or not hired because they are gay. As we progress forward and gay marriage becomes more accepted, I think the law will finally catch up, and sexual orientation will become one of the legally protected categories.

4. Nation of Origin

Just like race, it’s illegal to fire someone because of where they are from. You can’t be fired just because you’re from another part of the world. It’s also an important category to separate from race, because an employer could try to fire someone of the same race, but do it because they’re from a different country (for example, a white business owner who fires another white employee because they’re from Ireland).

5. Disability

disability_iconThe Americans with Disabilities Act of 1990 also protects employees with disabilities, as well as this statute. An employer cannot refuse to hire someone because of their disability status, assuming that disability doesn’t prevent them from doing the job at all.

6. Religion

This not only protects people from different religions around the world — Muslims, Jews, Buddhists, Sikhs, and so on — it even protects people within Christian denominations. For example, f your religious practices don’t allow you to work on certain days, you cannot be made to work on those days, and you cannot be fired because of it.

7. Pregnancy

This statute protects any woman who is pregnant and keeps her from losing her job while she is on maternity leave. It also means that a company cannot refuse to hire a woman because she’s pregnant. However, the Kentucky Civil Rights Act does not protect men who leave work when their wife has a baby. They are protected under the Family and Medical Leave Act (FMLA), but that would be a more difficult case to win, if the situation ever came up.

Those are the seven basic exceptions to the at-will employment rules for the state of Kentucky. If you have ever been told, especially if it’s been put in writing, that you’re being fired or not hired for any of these reasons, you may have a discrimination case. If you’re not sure, speak to an employment law attorney to see if you have a valid claim against your employer.

Car Dealership Employee Fired After Complaining About Fraudulent Warranty Claims May Sue For Wrongful Termination in Violation of Public Policy

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The Fourth District Court of Appeal recently held that a former car dealership employee’s allegation that he was terminated over his complaints of fraudulent warranty claims was sufficient to support a cause of action for wrongful termination in violation of public policy. The Court reasoned that there is public interest in a workplace free from crime and that termination resulting from complaints about fraudulent warranty claims encompass potential violations of statutes proscribing theft and fraud. (Yau v. Santa Margarita Ford, Inc. et al. (August 26, 2014, G048013, G048343) ___ Cal.App.4th___).


Eddie Yau (“Yau”) worked at Santa Margarita Ford, Inc. (“Santa Margarita Ford”) as a service manager before he was terminated in February 2009. After his termination, Yau filed a complaint for wrongful termination in violation of public policy, alleging, among other claims, that he was terminated after complaining to management that fraudulent warranty repair claims were submitted by Santa Margarita Ford to Ford Motor Company.

Yau alleged his termination violated public policy as set forth in a variety of statutes, including statutes proscribing theft and fraud. The trial court sustained demurrers without leave to amend and dismissed the action, finding that Yau had failed to identify a public policy violated by his termination because the policies and statutes he cited did not “inure to the benefit of the public.”


The Court of Appeal reversed the ruling of the trial court. In its discussion, the Court of Appeal cited the general legal principles set forth in Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, for determining whether an alleged public policy is sufficient to support a wrongful termination in violation of public policy claim: “First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’” [citations omitted.] See link for KMTG’s Legal Alert on the Casella case.

Yau contended that his complaint adequately alleged a public policy tethered to a statutory provision because the fraudulent warranty claims he complained about Santa Margarita Ford submitting to Ford Motor Company implicated potential violations of statutes proscribing theft (Pen. Code, §§ 484, 487) and fraud (Civ. Code, §§ 1572, 1709). Santa Margarita Ford disagreed, arguing that Yau’s allegations affected only Santa Margarita Ford and Ford Motor Company, not the public at large, since it was Ford Motor Company that stood to suffer harm as a result of the alleged fraudulent claims. In support of its argument, Santa Margarita Ford relied on American Computer Corp. v. Superior Court (1989) 213 Cal.App.3d 664 (“American Computer”), in which the court concluded that an employee’s report to company officers of suspected theft from the company by another employee did not implicate public policy.

The Court of Appeal distinguished American Computer and sided with Yau, finding that Yau had adequately alleged a public policy tethered to statutory provisions. In distinguishing American Computer, the Court of Appeal noted that the while the potential harm in American Computer was borne by the employer, a third party, Ford Motor Company, was potentially harmed by the conduct complained of by Yau. The Court also noted that there is a “fundamental public interest in a workplace free from crime.” Because Yau’s allegations encompassed violations of the law, the Court held that Yau’s allegations, if true, implicated that fundamental public interest. Thus, the Court of Appeal reversed the ruling of the trial court.

NLRB finds Internet/blogging policy violated NLRA, as did Facebook-related firings

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A restaurant/bar unlawfully discharged employees caught venting on Facebook because they had to pay extra state income taxes due to the employer’s withholding mistakes, a three-member NLRB panel held. The Board rejected the notion that the Facebook conversation, in which the manager who performs the restaurant’s accounting duties was called “an asshole,” was so disparaging or defamatory that the conduct lost the protection of the Act. (In so ruling, it also rejected the use of the Atlantic Steel framework, generally speaking, in cases involving the off-site use of social media.) Among other additional findings, a majority found that the restaurant’s internet/blogging policy was unlawful; Member Miscimarra dissented on this point (Three D, LLC dba Triple Play Sports Bar and Grille, August 22, 2014).

Facebook griping. It all started when several restaurant employees (not represented by a labor union, in this case) discovered that they owed more in state income taxes than they anticipated. The employees discussed the problem with coworkers at the restaurant, and some complained about it to the employer, who planned a staff meeting with its payroll provider to discuss the employees’ concerns. Meanwhile, a former employee took to Facebook to air her grievance: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” She added, in another comment: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.” At this point, one of the restaurant’s current employees “liked” his former colleague’s initial status update.

Then another employee chimed in: “I owe too. [He’s] Such an asshole.” The employee’s Facebook privacy settings permit only her Facebook friends to view her posts. But the restaurant owner’s sister, also an employee, was a Facebook-friend of-a-friend, and she told her brother about the social media conversation. She was fired when she came into work. When asked why, the boss said she was “not loyal enough” to work for the restaurant given her Facebook comment.

The employee who hit “like” in response to the initial comment met a similar fate. He was brought into the office, asked whether he “had a problem with them, or the company,” was interrogated about the Facebook discussion, the identity of other people who took part in the conversation, whether he had written anything negative about management, and the meaning of his “like.” He was also told that because he “’liked’ the disparaging and defamatory comments,” he obviously wanted to work elsewhere. After showing the employee the door, the restaurant owner told him that his attorney instructed the restaurant to fire anyone involved in the Facebook conversation — and that “you’ll be hearing from our lawyers.” He never did hear from the restaurant’s attorneys, although they contacted the other discharged employee raising the threat of legal action against her; they also contacted the former employee, who deleted the entire conversation and posted a retraction.

Unfair labor practice findings. The law judge found the Facebook discussion was concerted activity under the standard set forth in Meyers Industries because it involved four current employees and was “part of an ongoing sequence” of discussions that began in the workplace about the restaurant’s calculation of employees’ tax withholding. She also found the employee who hit the “like” button was expressing his support for the others, and thus was a participant in the protected, concerted activity. Also, the activity did not lose the protection of the Act under Atlantic Steel Co or Jefferson Standard, she concluded, so their discharge on this basis was unlawful. The Board panel agreed, but under a slightly different analysis.

The Board also held the restaurant separately violated the NLRA by threatening the employees with discharge, interrogating them about their Facebook activity, informing them that they were being discharged because of their Facebook posts, and threatening them with legal action.

Atlantic Steel does not apply. Unlike the law judge, the Board did not apply the Atlantic Steel framework in deciding whether the Facebook comments at issue here lost the protection of the Act, explaining that this precedent was “not well suited to address issues that arise in cases like this one involving employees’ off-duty, offsite use of social media to communicate with other employees or with third parties.” Atlantic Steel factors work well when analyzing whether direct, face-to-face workplace confrontations between employees and management are “so opprobrious” as to lose the Act’s protection, the Board noted, but it hasn’t typically been applied as to third-party or public communications. (Atlantic Steel’s “place of discussion” factor, in particular, is problematic to apply outside the physical workplace.) In those cases, the Board has applied the standards set forth in Jefferson Standard and Linn. Doing the same here, the Board found the comments at issue were statutorily protected.

The Board was careful to note, though, that it did not hold “employees’ off-duty, offsite use of social media can never implicate an employer’s interest in maintaining workplace discipline and order in the same manner that a face-to- face workplace confrontation with a manager or supervisor does.” However, the facts here did not support such a finding. Specifically, the employee’s use of “asshole” to describe the manager, during the course of a protected discussion on social media, didn’t sufficiently implicate the restaurant’s interest in maintaining discipline in the workplace to the extent that an Atlantic Steel analysis was called for.

Comments not unduly disparaging. It was undisputed the Facebook conversation was a concerted activity under the NLRA; the question was whether the conversation lost the protection of the Act. As the restaurant saw it, the Facebook posts were made in a “public” forum accessible to other workers and to customers — adversely affecting management’s authority in the workplace as well as its public image. However, the Board disagreed that the communication here was “so disloyal, reckless, or maliciously untrue” as to be unprotected under Jefferson Standard and its progeny. The comments made no mention of the restaurant’s products or services, let alone disparage them, the Board observed. “Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.”

Distinguishing the comments at issue with those deemed unprotected in Jefferson Standard, the Board said the Facebook discussion here clearly revealed the existence of an ongoing dispute (over the restaurant’s tax withholding practices). Also, the discussion was not directed to the general public; the comments were posted on an individual’s personal Facebook page, not on a company page providing information about its products or services. Although the record was unclear as to the privacy settings used by the former employee (whose initial status update launched the whole affair) or other “friends” who made comments, “we find that such discussions are clearly more comparable to a conversation that could potentially be overheard by a patron or other third party than the communications at issue in Jefferson Standard, which were clearly directed at the public.”

Grappling with Facebook-specific discourse. What did the employee’s Facebook “like” mean in this instance? While it was ambiguous, the Board concluded the employee was merely endorsing the original status update by the former employee, not the “entire topic as it existed at the time,” as the law judge had found (including the subsequent contention that it was “all Ralph’s fault.”) Had the employee intended to express his approval or agreement with the additional comments that followed the initial status update, he would have “liked” them each individually, the Board reasoned.

The Board also rejected the employer’s effort to pin the blame on the two employees for other comments made during the ongoing Facebook conversation, including comments by the former employee accusing the restaurant of pocketing employees’ money. Assuming that accusation would have been unprotected, it didn’t follow that the employees would have lost the protection of the Act by simply participating in an otherwise-protected Facebook discussion where unprotected statements were made by other participants.

Comments not defamatory. Nor were the employees’ Facebook comments defamatory under the standard set forth in Linn and its progeny. The Board saw no basis to find the employees’ claims that their withholding was insufficient to cover their state tax liability, or that the shortfall resulted from an error on the employer’s part, were maliciously untrue. As for the “asshole” comment about the restaurant manager, made in connection with the complaints about the withholding errors, the Board said the employee was merely voicing a negative personal opinion that could not reasonably be read as a statement of fact. This, too, did not lose the Act’s protection.

Discharges unlawful. Because it was undisputed that the employees’ discharges were motivated by the Facebook comments, it also followed that the finding that such comments were protected meant the discharges violated the Act. Of note here: the law judge applied Burnup & Sims in finding the discharges violated Sec. 8(a)(1), notwithstanding that the restaurant may have mistakenly believed, in good faith, that the Facebook posts were unprotected. But Burnup & Sims applies in cases involving mistakes of fact, not mistakes of law. This was clearly not a “mistake of fact” case, so this precedent did not apply. “Otherwise,” as the Supreme Court explained, “the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees.”

Internet policy unlawful. Here’s where the Board parted ways with the law judge, and Member Miscimarra, with the majority. The judge had dismissed the allegation that the restaurant unlawfully maintained an overly broad internet/blogging policy, but the Board majority reversed, finding that employees would reasonably construe the restaurant’s policy to prohibit the type of protected Facebook posts that led to the unlawful discharges. Specifically, employees could reasonably interpret the policy barring “inappropriate discussions” as prohibiting any discussions about terms and conditions of employment deemed “inappropriate” by the employer. Problematic to the majority was that the rule contained only one other prohibition — against revealing confidential information — and offered no illustrative examples as to what would be deemed inappropriate in the employer’s eyes. As such, the term “inappropriate” was “sufficiently imprecise” to implicate Section 7 concerns. (On this holding, the majority was guided by its precedent in First Transit, Inc, noting that the Board’s approach in this area “has received judicial approval.”)

(Miscimarra disagreed with the notion that the term “inappropriate” was too imprecise to pass muster without also providing illustrative examples. As he observed, most individuals would appreciate that “inappropriate” behavior could have consequences sufficiently serious as to violate the law and result in discipline. “It does not per se violate Federal labor law to use a general phrase to describe the type of conduct that may do so.” If such were the case, he reasoned, then “just cause” provisions found in most bargaining agreements over the last eight decades would be deemed invalid, he argued.)

And while the General Counsel did not contend that the restaurant expressly relied on its internet policy in discharging the employees in this case, by firing them unlawfully for their Facebook discussion, the restaurant conveyed a strong message to its workforce about “the scope of its prohibition against inappropriate discussions and that they should construe its rule against inappropriate discussions to include such protected activity.” True, the policy contained a general savings clause noting that it had no force or effect if state or federal law precluded it, but the unlawful discharges sent a contrary message.

Miscimarra rejects Lutheran Heritage. Finding nothing in the language of the internet policy that employees could reasonably construe to prohibit Section 7 activity, Miscimarra would find the policy was “legitimately aimed to prevent the revelation of proprietary information and statements about the company, its management, and its employees that may be unlawful.” Miscimarra noted too that he disfavored the current Board standard regarding overly broad work rules and policies, set forth as the first prong of Lutheran Heritage (work rules are unlawful even where they do not explicitly restrict protected activity, and are not applied against or promulgated in response to such activity, if “employees would reasonably construe the language to prohibit Section 7 activity”). He urged the Board to reconsider the standard when an appropriate case permits (but, even under Lutheran Heritage, he would find the policy here lawful — phrased “in general commonsense terms that preclude it from reasonably being considered unlawful under any standard.”)

Miscimarra also decried the majority’s “cobbling together” here of prongs one and three of the Lutheran Heritage standard as “contrary to the careful separation of those two theories of violation established in that case.” Under prong one, the question is whether the language of a work rule would, on its fact, reasonably be interpreted to prohibit Section 7 activity; prong three asks whether a rule, regardless of its wording, has been applied to restrict Section 7 rights. “The majority continues down the path of this hybrid category of violation, under which a rule that is not unlawful on its face and has not been applied to restrict the exercise of Section 7 rights nevertheless is found unlawful based on a mixture of the rule’s language and the employer’s conduct,” he asserted. “In so doing, the majority contributes to the uncertainty employers confront in seeking to square their rules with our Lutheran Heritage prong-one precedent, which, at this point, consists of so many distinctions, qualifications, and factual variations as to preclude any reasonable ‘certainty beforehand’ for most parties ‘as to when [they] may proceed to reach decisions without fear of later evaluations labeling [their] conduct an unfair labor practice.’”

The majority rejected the “cobbling together” accusation, and the notion that its holding would spark greater uncertainty on the part of employers by applying the first prong of Lutheran Heritage to the facts at hand. Rather, its finding that the policy in question here was unlawful was in keeping with “the many Board decisions that have found a rule unlawful if employees would reasonably interpret it to prohibit protected activities,” the majority countered.

Threatening litigation: an unresolved issue. Also worth noting: In adopting the law judge’s finding that the restaurant also violated the Act by unlawfully threatening legal action against the employees, the Board relied on the restaurant’s post-discharge statement to one employee that he would “be hearing from [its] lawyers.” This threat was not incidental to a lawsuit; the lawyers never contacted him and the restaurant took no legal action against him. By its threat alone, though, the restaurant violated Sec. 8(a)(1), regardless of whether a lawsuit against the employee would have been unlawful had one been filed.

On this point, the law judge erred in stating that the NLRB had “explicitly declined to apply” the principles of BE & K Construction Co. (2007) to threats to initiate litigation where the threat is incidental to the actual filing of a lawsuit itself. That issue remains undecided, the Board noted, adding that its resolution was unnecessary here.
By Lisa Milam-Perez, J.D.

EEOC Sues Arthur’s Restaurant & Bar for Pregnancy Discrimination

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Addison Eatery Forced Waitress Out Because She Was ‘Beginning to Show,’ Federal Agency Charges

DALLAS – Arthur’s Restaurant and Bar, located in Addison, Texas, violated federal law when it terminated a waitress because she was pregnant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to the EEOC’s lawsuit, Jennifer Todd, who was pregnant, was pressured to take early maternity leave by management. On Aug. 3, 2012, the EEOC’s investigation revealed that Arthur’s owner, Mohsen Heidari, complained that Todd was “starting to show,” and the company claimed that her baby’s health was at risk because Arthur’s is a smoking establishment. On Aug. 8, the company forced her to begin her maternity leave early, and never assigned her another shift thereafter, effectively discharging her.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC sued in the Northern District of Texas (Civil Action No. 3:14-cv-03033-N) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks injunctive relief including the formulation of policies to prevent and correct sex and pregnancy discrimination. The suit also seeks lost wages and compensatory and punitive damages for Todd.

“Employers should be well beyond archaic prejudices against women who are pregnant,” said Robert Canino, EEOC Dallas District Office Regional Attorney. “Too many employers have continued to deny female workers equal opportunity to earn a living for their families and themselves, simply because they are pregnant or ‘showing.’ The EEOC continues to combat such prejudices and practices as part of its efforts to educate the public about the rights of women in the workplace – everyone should be free from this obvious form of sex discrimination.”

Since the start of fiscal year 2011, the EEOC has filed over 45 lawsuits involving pregnancy discrimination. During that time, the federal agency has recovered approximately $3,500,000 — as well as important injunctive and other case-specific “make whole” relief — for victims of pregnancy discrimination through its litigation program.

The EEOC recently issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question-and-answer document about the guidance and a fact sheet for small businesses. The Enforcement Guidance, Q&A document, and Fact Sheet are available on the EEOC’s website.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

California Employers Required to Pay Employees’ Work-Related Cell Phone Expenses

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A California Court of Appeals held recently in Cochran v. Schwan’s Home Service, Inc. that employers must reimburse employees for cell phone expenses when the employees are required to use their personal cell phones for work-related purposes. The Court imposed this obligation even where the employee had a cell phone plan with unlimited minutes, and even if a family member or other third party paid the bill.


Cochran filed a putative class action against Home Service on behalf of customer service managers who were not reimbursed for work-related use of their personal cell phone. He brought the lawsuit in Los Angeles Superior Court pursuant to California Labor Code § 2802, which requires employers to “indemnify [their employees] for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” The trial court denied class certification due to lack of commonality, finding that each class member’s damages would depend on whether a third party (e.g., Cochran’s live-in girlfriend) paid the cell phone bill, and whether the employee purchased a different cell phone plan to accommodate work-related usage.

Court of Appeal Broadly Applies Labor Code § 2802

The Court of Appeals (Second District) held that the trial court’s legal assumptions were erroneous. Reimbursement is required regardless of the employee’s cell phone plan, the court held, because employers would otherwise receive a windfall by passing operating expenses onto employees. If an employee is required to make work-related calls on a personal cell phone, then he or she necessarily incurs an expense for purposes of Section 2802—regardless of whether the added expense is passed along to a third party or the cell phone carrier. Similarly, the court found it irrelevant whether the employee changed plans to accommodate work-related cell phone usage or used a pre-existing unlimited cell phone plan. The court opined that this result was necessary to prevent employers from “digging into the private lives of their employees to unearth how they handle their finances vis-à-vis family, friends and creditors.”

The court reversed and remanded to the trial court to reconsider Cochran’s class-certification motion in light of its interpretation of Section 2802. The court left open the question of how much of the cell phone bill employers are required to pay, other than to say that the employer must pay “some reasonable percentage” of the employee’s cell phone bill. The amount will depend on the employee’s individual cell phone plan and level of work-related phone usage.

The court also did not discuss the threshold question of what constitutes a “mandate” that employees use their personal phones for work.

Practical Implications Of Cochran

The court’s ruling is specific to cell phone usage, but the reasoning could also be interpreted as applicable to other remote access expenses, including home computer use and internet or data charges. Employers whose employees may be using personal mobile devices for work use should re-examine their practices and policies in light of Cochran. Employers may consider (1) barring employees from using personal cell or home phones for work purposes, (2) providing company cell phones to employees who need to use them for work, or (3) establishing a reimbursement policy for cell phone or home computer use.

EEOC Lawsuit Challenges Orion Energy Wellness Program and Related Firing of Employee

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Steep Penalties for Not Participating Said to Make Program Involuntary and Violate Disabilities Act

MILWAUKEE — Manitowoc, Wis.-based Orion Energy Systems violated federal law by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of a so-called “wellness program,” which was not voluntary, and then by firing the employee when she objected to the program, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

In a lawsuit filed in Green Bay, Wis., today, the federal agency contends that Orion instituted a wellness program that required medical examinations and made disability-related inquiries. When employee Wendy Schobert declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert. Shortly thereafter, Orion fired Schobert.

The EEOC maintains that Orion’s wellness program violated the Americans with Disabilities Act (ADA) as it was applied to Schobert, and that Orion retaliated against Schobert because of her good-faith objections to the wellness program. The EEOC further asserts that Orion interfered with Schobert’s exercise of her federally protected right to not be subjected to unlawful medical exams and disability-related inquiries.

The EEOC brought the suit under Title I of the ADA, which prohibits disability discrimination in employment, after first attempting to reach a pre-litigation settlement through its conciliation process. The case, (EEOC v. Orion Energy Systems, Civil Action 1:14-cv-01019) was filed in U.S. District Court for the Eastern District of Wisconsin, Green Bay Division, and is assigned to U.S. District Judge Chief Judge William C. Griesbach.

The EEOC filed another disability discrimination suit against Orion in May 2014 (EEOC v. Orion Energy Systems, Civil Action No. 14-cv- 00619). In that lawsuit, the EEOC contended that Orion fired Scott Conant after he experienced a disabling condition that substantially limited his ability to walk and required that he use a wheelchair. The EEOC said that Conant’s termination followed his request for accommodations, such as an automatic door opener, to allow him to enter and exit the Orion workplace. Orion never installed a door opener while Conant worked there.

This most recent lawsuit is the EEOC’s first to directly challenge a wellness program under the ADA. Earlier hearings by the EEOC on wellness programs revealed that a majority of employers now offer some sort of wellness program — 94 percent of employers with over 200 workers, and 63 percent of smaller ones, according to Karen Pollitz of the Kaiser Family Foundation, which researches issues relating to health care.

“Employers certainly may have voluntary wellness programs — there’s no dispute about that — and many see such programs as a positive development,” said John Hendrickson, regional attorney for the EEOC Chicago district. “But they have to actually be voluntary. They can’t compel participation by imposing enormous penalties such as shifting 100 percent of the premium cost for health benefits onto the back of the employee or by just firing the employee who chooses not to participate. Having to choose between responding to medical exams and inquiries — which are not job-related — in a wellness program, on the one hand, or being fired, on the other hand, is no choice at all.”

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at .

How To Prove Injury in an Employment Law Case

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Proving “injury” in an employment law case is one of the most difficult things to do. Unlike a personal injury case, an injury in an employment case does not have hard evidence such as an actual physical injury that can be easily described and diagnosed by a doctor.

Emotional distress from a firing may have physical manifestation but it does not show when you look at someone. That is, there is no loss of limb or broken bone. That’s not to say there’s no injury, but rather the injury is often emotional and psychological.

Crutches and Cowboy BootsIn an employment case, the plaintiff was fired in violation of the Kentucky Civil Rights Statute. So you will instead want to prove liability; proving injury comes second.

Proving liability is the primary hurdle in an employment law case. In a car wreck if someone runs a red light and hits your car, the liability is clear. In an employment case, proving the defendant violated the law is difficult because in almost every case the defendant says, “I didn’t do that.”

Discrimination is often hidden by discreet manipulation of personnel and employment files. Rarely will there be a smoking gun email that says, “let’s fire John because he’s too old” or “we need to fire Susan because she’s pregnant.”

The case will be won through circumstantial evidence. Patterns or statistical data can be used leading up to the firing that don’t seem to add up or make any sense. The reason the company claims a person was fired for may not be true. In addition, comments made by the employer during employment could prove intent of the employer. These comments might be along the lines of “can’t teach an old dog new tricks,” “old fart,” or “concerns” about a woman being able to do her job while she’s pregnant or just had her baby.

If you can couple comments with circumstances, sometimes that is enough for a jury. Ultimately even though some of these cases are a “he said, she said,” that is sometimes all you’re able to take to court. Many of these cases are decided because they will determine the intent behind someone being fired or harassed. If a jury hears the entire story from both sides, they’ll often have enough evidence to make an informed decision.


Photo credit: PhotoAtelier (Flickr, Creative Commons)

Sal’s Mexican Restaurant Settles EEOC Sexual Harassment Charge Involving a Teenager

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FRESNO – Sal’s Mexican Restaurant in Fresno, Calif., has settled a sexual harassment charge with the U.S. Equal Employment Opportunity Commission (EEOC) for $15,000, the federal agency announced today. The EEOC had charged that the restaurant subjected a teenaged hostess to sexual harassment.

According to the EEOC, a hostess was sexually harassed by a male supervisor in 2009, while she was still a teenager. The supervisor allegedly made unwanted sexual propositions and advances, grabbed her body parts and tried to kiss her. The hostess further alleged that he required her to give hugs and back rubs as a condition of employment due to her gender. She contends that repeated complaints to restaurant management about the behavior were not addressed. The harassment and discrimination allegedly continued until the hostess felt compelled to resign in 2010.

The former hostess subsequently filed a discrimination charge with the EEOC in 2010. The EEOC ultimately found reasonable cause to believe that the restaurant violated Title VII of the Civil Rights Act of 1964 for the sexual harassment, intimidation, discrimination and constructive discharge to which she was subjected due to her gender.

Without admitting liability, Sal’s Mexican Restaurant entered into a two-year conciliation agreement with the EEOC and the former hostess, thereby avoiding litigation. Aside from the monetary relief, the restaurant agreed to hire a third-party consultant to help create, revise and implement new policies and procedures to address and prevent discrimination and harassment in the workplace. The restaurant also agreed to provide all employees with live training on their rights and responsibilities with respect to discrimination and harassment in the workplace. The agreement also requires that the restaurant establish a record-keeping system to track and monitor complaints. The EEOC will monitor compliance with the agreement.

“Employers have an obligation to ensure a workplace free of harassment and discrimination, particularly for our youngest workers who may be more vulnerable to abuses,” said Melissa Barrios, director of the EEOC’s Fresno Local Office. “We hope that more employers will follow the commitment of Sal’s Mexican Restaurant by implementing measures that will both prevent and address sexual harassment and other forms of discrimination on the job.”

The EEOC recently updated its Youth@Work website (at, which presents information for teens and other young workers about employment discrimination. The website also contains curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities in the workforce.

Preventing workplace harassment through systemic litigation and investigation is one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

Food Lion Sued by EEOC for Religious Discrimination

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Grocer Refused Accommodation for Jehovah’s Witness’s Worship Services, Federal Agency Charged

WINSTON SALEM, N.C. – Supermarket chain Food Lion, LLC violated federal law when it refused to provide a religious accommodation for and then fired an employee who is a Jehovah’s Witness, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a workplace discrimination lawsuit it filed today.

According to the EEOC’s complaint, Victaurius L. Bailey was hired as a meat cutter at a Food Lion store in Winston-Salem, N.C., on June 6, 2011. Bailey, who is a Jehovah’s Witness minister and elder, is required to attend church services and church-related meetings on Sundays and Thursday evenings as a component of his faith. Due to his religious beliefs and practice, upon hire Bailey asked that he not be scheduled to work on Sundays or on Thursday evenings. According to the EEOC’s complaint, the store manager for Food Lion’s Market No. 1044 in Winston-Salem initially agreed to accommodate Bailey’s request. However, when Bailey was transferred to work as a meat cutter at Market No. 334 in Kernersville, N.C., the store manager there told Bailey that he did not see how Bailey could work for Food Lion if he could not work on Sundays. According to the EEOC, Food Lion fired Bailey on June 27, 2011 because he was not available to work on Sundays.

Title VII of the Civil Rights Act of 1964 requires employers to attempt to make reasonable accommodations to sincerely held religious beliefs of employees absent undue hardship. The EEOC filed suit filed in U.S. District Court for the Middle District of North Carolina, (Equal Employment Opportunity Commission v. Food Lion, LLC, Civil Action No. 1:14-cv-00708) after first attempting to reach a voluntary settlement with Food Lion. In its complaint, the EEOC seeks back pay, along with past and future pecuniary losses, past and future non-pecuniary losses, compensatory damages, punitive damages and injunctive relief.

“Employers need to ensure that their supervisors and managers who are called upon to make decisions on employees’ requests for religious accommodations are fully knowledgeable of their obligations under federal law,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “Many decision makers seem to forget that unless providing a reasonable accommodation would impose an undue hardship on the company, the accommodation must be provided. No person should ever be forced to choose between his religion and his job.”

Food Lion, LLC is headquartered in Salisbury, N.C., and has approximately 73,000 employees.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at