Can An Employer Fire An Employee For Punching a Belligerent Shoplifter?

Yes – a federal court in Maryland recently rejected the argument that termination of an employee for punching an aggressive shoplifter violates public policy.

In Altschuld v. CVS Caremark Corp., the employee worked at a drug store and, in the course of his duties, confronted a suspected shoplifter.  No. WDQ-13-3680 (D. Md., July 10, 2014).  The shoplifter became aggressive and belligerent.  He shouted, cursed, and moved towards the employee in an aggressive manner.  Reasonably fearing for his safety, the employee punched the shoplifter.  After the shoplifter was arrested, the police determined that the employee acted in self-defense and did not charge the employee with any crimes.  The employer then fired the employee for using force against the shoplifter, and the employee sued for wrongful discharge, arguing that his termination violated a clear mandate of public policy.

On the employer’s motion to dismiss, the court rejected the argument that termination for punching a shoplifter violated a clear mandate of public policy.  The court explained that the self-defense statute that the employee cited as the basis for the alleged policy “merely immunizes a user of force from liability in certain cases – it does not mandate that use of force.”  The court further explained that, for purposes of the wrongful discharge claim, it did not matter whether the employee’s actions were “fair, justified, sensible, reasonable, or appropriate.”  Instead, the only consideration was whether the termination was wrongful because it violated a clear mandate of public policy.  Based on this reasoning, the court held that the employee’s claim failed as a matter of law.

Takeaway:  Employers have wide latitude in discharging at-will employees and can generally terminate an employee for any reason that it is not unlawful.  The Altschuld case shows that an employer can terminate an at-will employee even for engaging in lawful behavior, such as self-defense.

Minnesota Law on Genetic Testing

In 2008, Congress enacted the Genetic Information and Nondiscrimination Act (GINA), which prohibits genetic information discrimination in employment.  24 U.S.C. § 2000ff-1. While the passage of GINA was significant, Minnesota employers had already been restricted at that time regarding the administration or use of genetic testing for seven years.

In 2001, the Minnesota legislature enacted a similar statute regarding genetic testing in employment.  Minn. Stat. § 181.974.  That statute restricts an employer or employment agency from directly or indirectly (i) administering a genetic test or requesting, requiring, or collecting protected genetic information regarding a person as a condition of employment or (ii) affecting the terms or conditions of employment or terminating the employment of any person based on protected genetic information.  Further, no person is permitted to provide or interpret for any employer or employment agency protected genetic information on a current or prospective employee.  “Protected genetic information” means (i) information about a person’s genetic test or (ii) information about a genetic test of a blood relative of a person.

Unlike GINA which applies to employers with 15 or more employees, this state statute applies to employers with one or more employees in Minnesota.  The law does not apply to independent contractors.  The cost of non-compliance is significant.  A person may bring a civil action in which the court may award (i) up to three times actual damages suffered, (ii) punitive damages, (iii) reasonable costs and attorney fees, and (iv) injunctive or other equitable relief.

Takeaway:  Smaller employers who may not be covered by GINA should be aware that they are nonetheless restricted by the similar Minnesota law prohibiting genetic information testing.

Can Managers Scream, Curse, and Act Like Jerks Towards Employees?

Yes – it may be unwise, but it’s generally not unlawful for a manager to scream, curse, or otherwise act like a jerk towards an employee.

A recent decision from the Eighth Circuit Court of Appeals illustrates this point well.  In Rester v. Stephens Media, LLC, the court affirmed dismissal of a plaintiff’s hostile work environment claim under Title VII based on an incident in which her manager screamed and cursed at her and physically prevented her from leaving the area.  739 F.3d 1127 (8th Cir. 2014).  The court described the incident as follows:

Elderton slammed his hands on the desk and began screaming and cursing at her. Rester testified that she rolled her chair back, stood up, and said that she needed to leave, but Elderton put his hands on her three times, and physically prevented her from leaving until she began “wailing and cussing and screaming and hollering.”

In holding that this incident did not give rise to an actionable claim, the court emphasized that the hostile work environment standard is “demanding” and requires “extreme” conduct “rather than merely rude or unpleasant” conduct.  The plaintiff must show “that discriminatory intimidation, ridicule, and insult permeated the workplace.”  The court held that the single incident alleged by the plaintiff did not meet this standard.

Another reason why the plaintiff’s hostile work environment claim failed is because the conduct alleged did “not denote a sexist connotation.”  The anti-discrimination laws only prohibit harassment based on certain categories protected by law, such as sex, race, national origin, religion, disability, etc…  The conduct at issue in Rester, however, was based on a workplace disagreement, and there was no indication it was based on a protected class status.

In this latter respect, the Rester case was similar to another recent case, Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013).  In Lenzen, the court rejected a hostile work environment claim because the plaintiff could not establish that the manager’s bad behavior was based on her disability.  Instead, the evidence showed that the manager “created a hostile work environment for the whole support staff — including for those without any medical conditions.”

Takeaway:  Managers who scream, curse, and act like jerks may be undesirable for a host of non-legal reasons, such as employee morale, productivity, and retention.  But acting like a jerk is generally not sufficient to create a hostile work environment claim unless the behavior is based on a protected class status and is so extreme that discriminatory intimidation, ridicule, and insult permeate the workplace.

Don’t Forget! The Minnesota Minimum Wage Is Going to Increase on August 1, 2014

The minimum wage in Minnesota is about to increase.  Effective August 1, 2014, “large employers” – whose gross annual volume of sales made or business done is $500,000 or more – will need to pay a minimum wage of at least $8.00 per hour.  “Small employers” – whose gross annual volume of sales made or business done is less than $500,000 – will either need to pay a minimum wage of at least $6.50 per hour under state law or $7.25 per hour if the federal Fair Labor Standards Act applies.

The minimum wage will increase again on August 1, 2015.  For more information about Minnesota’s minimum wage law, click here.

What Is The Supreme Court’s Decision in Harris v. Quinn Really About?

In Harris v. Quinn, the Supreme Court issued a narrow ruling about whether a specific kind of partial-public employees in Illinois can be required to pay “fair share” fees, but the case sets the stage for a much broader challenge to fair share fees for all public employees.  No. 11-681 (June 30, 2014).

In Harris, the plaintiffs were “personal assistants” who provided homecare services under the Illinois’ Home Services Program.  The program allows certain individuals who are unable to live on their own due to age, illness, or injury to receive Medicaid funding for homecare services from a personal assistant.  The individual receiving the care is considered the personal assistant’s employer and exercises most of the control over the employment relationship, but the State pays the personal assistant’s salary, subsidized by the federal Medicaid program.

In 2003, the Illinois Legislature passed a law that recognized personal assistants as “public employees” for the sole purpose of collective bargaining under the Illinois Public Labor Relations Act.  However, the law did not extend any other benefits of public employment to the personal assistants.  For example, personal assistants were not eligible for the same retirement, health insurance, or indemnification benefits typically available to public employees.  Subsequently, the SEIU negotiated a collective bargaining agreement with the state that required personal assistants who did not want to join the union to pay “fair share” fees, which were deducted from the personal assistants’ Medicaid payments.

The plaintiffs in Harris challenged the fair share fees on the grounds that they violated the First Amendment by compelling them to support a union against their wishes.  The lower courts rejected the plaintiffs’ argument based largely on the precedent of Abood v. Detroit Board of Education, 431 U.S. 209 (1977).  In Abood, the Supreme Court held that public-sector employees who choose not to join a union may nevertheless be compelled to pay fair share fees.

The Supreme Court reversed and refused to extend the reasoning of Abood to the personal assistants in Harris.  Justice Alito, writing for the majority, emphasized that the personal assistants were only considered public employees for purposes of collective bargaining, but otherwise were not full-fledged public employees.  The majority held that the State failed to show that requiring these “partial-public” employees to pay fair share fees served a compelling government interest in the least restrictive manner.  As a result, the fair-share fee requirement violated the personal assistants’ First Amendment rights.

In reaching its holding, however, the Harris majority devoted a substantial amount of its opinion to criticizing the Abood decision.  The majority wrote that Abood had “questionable foundations,” and that the Abood Court “seriously erred” in interpreting prior precedent and “failed to appreciate” the differences between public-sector and private-sector employees.  The majority also wrote that the holding in Abood relied primarily on “an unsupported empirical assumption” – namely, that fair share fees are necessary for exclusive representation in the public sector.

Although the majority in Harris stopped short of overturning the Abood decision, it essentially created a roadmap for a future challenge to Abood, which is almost certain to now occur.  On the other hand, Justice Kagan, writing for the dissent, argued that the Abood decision should have controlled and that the fair share fees for personal assistants in Illinois should have been upheld based on the precedent of Abood.  Justice Kagan also pre-emptively argued against any attempt to overrule Abood, writing that “[t]he Abood rule is deeply entrenched” and that “[o]ur precedent about precedent makes it impossible for this Court to reverse that decision.”

Takeaway:  The Harris decision directly affects only a narrow category of employees in Illinois, but it has potentially much broader implications for public employees.  Following Harris, it is highly likely that there will be a new challenge to the Supreme Court’s precedent in Abood.  As for Justice Kagan’s prediction that it will be “impossible for this Court to reverse that decision,” only time will tell.

A Quick Primer on the Supreme Court’s Hobby Lobby Case

On the last day of its term, the Supreme Court issued its decision in Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (June 30, 2014) – a highly contentious case about whether closely-held for-profit corporations can be required to provide insurance coverage for certain contraceptives.  Here’s a high-level overview of what employers should know about the case:

The Religious Freedom Restoration Act (RFRA):  The Hobby Lobby case was not a First Amendment freedom of religion case.  Instead, it involved RFRA, a federal statute that prohibits the Government from substantially burdening “a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the Government demonstrates it:  “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”  42 U.S.C. § 2000bb-1(a-b).

The Contraceptive Mandate:  In Hobby Lobby, the plaintiffs challenged the application of a mandate to cover certain contraceptives arising under the Affordable Care Act, which requires certain employers’ group health plans to provide “preventive care and screenings” for women without “any cost sharing requirements.”  42 U.S.C. § 300gg-13(a)(4).  Regulations implemented by the Department of Health and Human Services (HHS) specify that this generally requires employers to provide 20 contraceptives.  The plaintiffs in Hobby Lobby objected to four of those contraceptives on the grounds that they prevented fertilized eggs from developing further by inhibiting attachment to the uterus.

Does RFRA Apply to Closely-Held Corporations?  Justice Alito, writing for the majority, held that RFRA’s use of the term “person” applied to closely-held for-profit corporations and that it was intended to extend rights to corporations to protect the rights of shareholders, officers, and employees.  Justice Ginsburg, writing for the dissent, argued strongly against this interpretation and questioned how the majority could confine its reasoning to closely-held corporations only.

Does the Contraceptive Mandate Substantially Burden Religion?  The majority said yes, reasoning that the contraceptive mandate required the plaintiffs to cover contraceptives that violated their sincerely held beliefs or pay substantial fines.  In dissent, Justice Ginsburg argued that the majority confused the sincerity of the plaintiffs’ belief with the substantiality of the alleged burden.  Justice Ginsburg argued that requiring the plaintiffs to fund general health insurance policies, which may or may not be used for contraceptives based on decisions made by others, was “too attenuated to rank as substantial.”

Does the Contraceptive Mandate Further a Compelling Governmental Interest?  The majority assumed, without deciding, that the contraceptive mandate furthered a compelling governmental interest.  The dissent agreed that it did.

Is There a Least Restrictive Alternative To the Contraceptive Mandate?  This is the issue where the plaintiffs won their case.  The majority held that there was a less restrictive alternative available – specifically, HHS already created an alternative system for non-profit religious organizations, like churches, to opt-out of the contraceptive mandate.  The system allows a non-profit religious organization to self-certify that it religiously objects to certain contraceptives.  If this certification is made, the insurer must then cover the costs of those contraceptives.  See 45 C.F.R. § 147.131.  The majority held that there was no reason the government could not make this option available to closely-held for-profit corporations with religious objections.  Accordingly, imposing the contraceptive mandate on closely-held for-profit corporations violated RFRA because it was not the least restrictive alternative.

Writing for the dissent, Justice Ginsburg argued that there was a valid basis for distinguishing between non-profit religious organizations, which are designed to serve a community of believers, and for-profit corporations, which are not.  Justice Ginsburg further argued that the alternative made available for religious organizations does not accomplish the ACA’s goals of providing employer-based health insurance and minimizing the administrative obstacles that employees may face in getting health insurance from another source.  Justice Ginsburg also worried about the “stopping point” for the majority’s reasoning and whether it would apply to other issues, such as health coverage for vaccines or application of the minimum wage.

Takeaway:  The Supreme Court held in Hobby Lobby that applying the ACA’s contraceptive mandate to closely-held for-profit-corporations violates RFRA.  Given the reasoning employed by the court, it is likely that HHS will issue new regulations allowing closely-held for-profit corporations to self-certify their religious objections to the contraceptive mandate, similar to the current regulations for non-profit religious organizations.  It is also likely that there will be more RFRA lawsuits involving for-profit corporations that will seek to extend the reasoning adopted by the Court in Hobby Lobby to other areas.

Does Failing to Remove a Former Employee From a Company Website Constitute Unlawful Appropriation?

A recent decision from the U.S. District Court for the District of Minnesota clarified that an employer’s failure to remove a former employee from a company website does not constitute unlawful appropriation, unless it’s intentional.

Appropriation is one of three torts that fall under the umbrella term of invasion of privacy.  The tort occurs when one person appropriates to his or her own use or benefit the name or likeness of another.

In Wagner v. Gallup, Inc., the plaintiff alleged that his former employer was liable for appropriation because it failed to update a reference to him on its website from a “principal of Gallup” to a “former principal of Gallup” after his departure.  The plaintiff conceded that he consented to the employer’s posting of information about him on the website at the time it was made and during his employment.  Civ. No. 12-CV-01816-JNE-TNL (D. Minn., June 20, 2014).

The court dismissed the plaintiff’s claim for appropriation because there was no evidence that the failure to remove the website’s reference to the plaintiff was intentional.  The court explained that “the appropriation tort is an intentional one,” and that the plaintiff must show the defendant “acted intentionally in appropriating his name to prevail on his appropriation claim.”  Because there was no evidence that the employer acted intentionally, the plaintiff’s claim failed.  The court also noted that plaintiff’s claim would likely fail because there was no evidence of damages.

Takeaway:  In most cases, failing to remove an employee’s name or image from a company website after termination will not support a claim for appropriation, unless there is evidence that the appropriation was intentional.

How the NLRB Is Like Charlie Brown

If the National Labor Relations Board (NLRB) was a character in Peanuts, it would be Charlie Brown – “the lovable loser in the zig-zag t-shirt—the kid who never gives up (even though he almost never wins).”  The Supreme Court just pulled the football from the NLRB again and invalidated approximately one and a half years of its decisions.

In NLRB v. Noel Canning, et al., the U.S. Supreme Court held that President Obama’s three recess appointments to the NLRB in January of 2012 were invalid because the Senate was not in recess long enough to make recess appointments necessary.  The practical effect of this decision is that the opinions issued by the NLRB between January 2012, when the recess appointments were made, and July of 2013, when the Senate confirmed the President’s nominees, are likely invalid.  This is because the NLRB needs a quorum of at least three members for an opinion to be valid.  See New Process Steel v. NLRB, 130 S.Ct. 2635 (2010).

The overall effect of the Noel Canning decision is somewhat unclear.  On one hand, the NLRB’s decisions from January of 2012 through July of 2013 are likely invalid due to lack of a quorum.  On the other hand, the NLRB currently has a quorum and is similar in disposition to the NLRB during the now-invalidated time period.  As a result, if the same issues come to the NLRB again in the near future, they will likely be decided the same way.  In addition, to the extent that the now-invalidated NLRB decisions were based on valid precedent from the NLRB, the invalidation of the more recent NLRB decisions may not have much effect at all.  Good grief.

Takeaway:  The NLRB will probably never get the courage to speak to the Little Red-Haired Girl.  The Noel Canning case creates some uncertainty, but it likely will not have a significant impact on employers.

Can An Employee Who Receives All of His or Her FMLA Leave Bring an FMLA Interference Claim?

No – a recent decision from the Third Circuit Court of Appeals once again confirms that an employee who receives all of the FMLA leave to which he or she is entitled does not have a viable claim for FMLA interference.

In Ross v. Gilhuly, a plaintiff asserted both interference and retaliation claims against his former employer under the Family and Medical Leave Act (FMLA). The plaintiff was initially put on a Performance Improvement Plan (PIP) before taking any FMLA leave. After finding out that he had prostate cancer, the employee then took approximately two months of FMLA leave. Following the employee’s return from leave, the employer extended the PIP and later terminated the employee for poor performance.

With respect to the plaintiff’s FMLA interference claim, the court held that an essential element of an interference claim is that a plaintiff must prove that he or she “was denied benefits to which he or she was entitled under the FMLA.” Because the plaintiff received all of the FMLA leave to which he was entitled, the court dismissed the interference claim. The court explained that:

Ross’s argument that Gilhuly interfered with his entitlement to take FMLA leave free from later discrimination confuses interference with retaliation and is thus misdirected. At bottom, “[a]n interference action is not about discrimination[;] it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.”

The court also dismissed the plaintiff’s retaliation claim. The court noted that the performance problems that resulted in the plaintiff’s termination began before he took FMLA leave. The court also explained that the timing of the termination did prove retaliation, particularly because the PIP was implemented before the FMLA leave began.

Takeaway: The Ross case is a good reminder that FMLA interference claims are not viable unless an employer withholds FMLA leave benefits from an employee without justification or otherwise prevents an employee from using FMLA leave to which he or she is entitled. FMLA retaliation claims, on the other hand, are generally based on allegations that an employer took an adverse action against an employee after he or she used FMLA leave.

Is A Leave of Absence Longer Than Six Months Required As A Reasonable Accommodation?

According to the U.S. Court of Appeals for the Tenth Circuit, the answer to whether a leave of absence longer than six months is required as a reasonable accommodation is “almost always no.”

In Hwang v. Kansas State University, the Tenth Circuit addressed the question of whether an employer violated the Rehabilitation Act by denying an employee’s request for a leave of absence extending beyond six months. The Rehabilitation Act applies to employers who receive federal funding. Like the Americans with Disabilities Act (ADA), it prohibits disability discrimination and requires employers to provide reasonable accommodations to disabled employees, absent undue hardship. Because claims asserted under the Rehabilitation Act are subject to the same analysis as claims under the ADA, the court’s analysis in Hwang is relevant to the majority of employers.

The Hwang court held that a leave of absence of longer than six months is almost never a reasonable accommodation because it typically means that the employee cannot perform the essential functions of his or her job. The court explained its holding by stating that:

It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.

In reaching this conclusion, the Hwang court rejected the argument that any inflexible leave policy – for example, a policy that never provides more than six months of leave – is a per se violation of the Rehabilitation Act or the ADA. The court explained that an employer only needs to modify a leave policy to provide a reasonable accommodation and that a leave of absence longer than six months would seldom, if ever, be reasonable. However, the court cautioned that inflexible leave policies that only authorize a short period of leave may still be subject to attack.

Takeaway: The Hwang decision helps provide some clarity for employers struggling with the often difficult question of how long is too long for a leave of absence to accommodate a disabled employee. Although individual consideration is still required whenever an employee requests an accommodation, the six-month rule endorsed by the Hwang court is a helpful rule of thumb for employers.

EEOC Challenges English-Only Workplace Rules in Wisconsin

The Equal Employment Opportunity Commission (EEOC) recently announced that it filed a lawsuit against a Wisconsin-based company alleging national origin discrimination based on “English-only” workplace rules.

In the EEOC’s press release, the EEOC alleged that the employer terminated a number of Hmong and Hispanic employees after a 10-minute observation that identified the employees as having low English skills.  The EEOC alleged that English language skills were not necessary for the employees to perform their jobs and that the employees had otherwise received good job performance allegations.  Because the English language skills were not required for the job, the EEOC alleged that the terminations constituted prohibited national origin discrimination under Title VII, which protects the linguistic characteristics of national origin groups.

Takeaway:  The EEOC’s new case concerning English-only rules is a good reminder for employers that language requirements for a job generally must be based on a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”  See 29 U.S.C. § 2000e-2(e)(1).  If that standard is not met, an English-only language rule may potentially run afoul of Title VII.  Additional information about English-only rules is available on the EEOC’s website here.

Good for Goose/Good for Gander: Some Tips on Partnership Agreement and Employment Rights

When a partnership forms, expands or changes, the partners must legally define many aspects of their relationships, including employment and post-employment rights.  To do so successfully, it is important to analyze the topics from two points of view: that of the employer and that of the employee, because a partner is both.

For example, stringent post-employment constraints may seem like a good idea from the employer point of view, but if one day you are the departing partner, what restraints would you think are fair and necessary?  What can you reasonably enforce?

Also, the partner as employer may like an at-will employment clause, but does he or she want to be subject to such minimal employment rights?  It could happen.  And how does such a clause square with partnership rights and expectations under Minnesota statutes and common law?

And, what about buy-out rights and procedures?  Many a costly partnership battle stems from vague or inequitable buy-out agreements and many a partnership has been damaged or disbanded by too generous and too immediate buy-out provisions.  Under Minnesota law, the court will generally base buy-out processes and procedures upon the parties’ written agreement – you sign it, you live with it.

Takeaway:  In drafting or updating a partnership agreement, the partners should be of two minds – employer and employee.  Legal counsel will be important in helping strike the “good for the goose/good for the gander” balance and create a fair, workable, and enforceable partnership agreement.


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