Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘At-Will employment’

Employees are not fully protected by the First Amendment

Monday, August 21st, 2017

Private employment is at will. The most productive or most loyal worker is subject to termination at any time. Employers are not required to show cause or pay severance. The only exception is getting fired for a discriminatory reason that violates state or federal law.

Recent developments have people wondering if they can be fired for speaking their mind or expressing political views, especially off the clock and away from work. In many cases, the answer is yes, when “free speech” activities reflect poorly on the company or violate company policy or employment agreements.

What happens in Vegas does not stay in Vegas

In the wake of the protests and counterprotests in Charlottesville, Virginia, some attendees were “outed” on social media and subsequently fired by their employers. Companies quickly cut ties with employees photographed in Ku Klux Klan or Nazi regalia.

But what about carrying a Confederate flag or a tiki torch to protest removal of a statute? Or conversely, what about antifa or Black Lives Matter supporters depicted in clashes with alt-right marchers?

Courts have generally upheld the right of private employers to terminate employees for conduct in their private lives that is detrimental to the company’s goodwill, such as drunken debauchery or photo ops with hate groups.

For public employees, the standard is higher – does the private conduct compromise the ability of the employee or the agency to serve the public?

Don’t bite the hand that feeds you

Employees who badmouth their employers, especially on Facebook or Twitter, should not be surprised to get pink slips. Whistleblowers are protected from retaliation for reporting criminal activity or rights violations, but within limits.

In a recent case in Minnesota, the 8th U.S. Circuit Court of Appeals upheld the firing of six Jimmy John’s employees who complained about the company’s lack of sick leave. Rather than discussing labor law, which is protected speech, they insinuated via posters and press releases that the company’s sandwiches might be tainted by workers with contagious illness.

As the fired workers were involved in a unionization effort, the National Labor Relations Board and a three-judge appeals panel ruled that the firings were essentially retaliation. The full 8th Circuit appeals court disagreed, reinforcing that employees do not have a First Amendment right to disparage their employer’s products or services.

On the other hand, some experts say James Damore may have grounds for wrongful termination after Google fired him for posting a “manifesto” about gender diversity. Despite questionable science – asserting women are biologically more “neurotic” than men – his opinion was posted on an internal forum that Google created to discuss workplace issues.

Google asserts that Damore was let go because his incendiary treatise was derogatory and discriminatory, in violation of company policy and perhaps federal law. Damore has filed a complaint with the National Labor Relations Board, saying that he acted within his rights to discuss his working environment and his employer’s discriminatory practices.

Discrimination is not a business reason

The First Amendment is a smaller shield within the context of employment. Employers have some latitude to separate from employees for objectionable speech. But terminations cannot be based on a worker’s race, national origin, gender or religion.

These cases are always dependent on legal precedent, new interpretations, enforcement priorities or recent changes in the law itself. If you believe an employer has unfairly punished or fired you for protected speech, an employment law attorney can explore your legal remedies.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on August 18, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Viewpoint: A Smart Strategy to Defeat ‘Right to Work’

Wednesday, March 18th, 2015

Viewpoint: A Smart Strategy to Defeat ‘Right to Work’
March 17, 2015 / Rand Wilson

Rand Wilson

Without aggressive action, the right-to-work tsunami will sweep more states. “Just Cause for All” campaigns should be part of the strategy.

Wisconsin is now the 25th state to adopt a so-called “right-to-work” law, which allows workers to benefit from collective bargaining without having to pay for it.

It joins Michigan and Indiana, which both adopted right to work in 2012. Similar initiatives, or variants, are spreading to Illinois, Kentucky, Maine, Missouri, New Hampshire, New Mexico, and West Virginia—and the National Right to Work Committee and the American Legislative Exchange Council probably have a well-developed list of additional targets.

Without aggressive action, the right-to-work tsunami will sweep more states. To defeat it, the first step is committing to fight back, rather than resigning ourselves to what some say is inevitable.

Everyone’s Interests

We’ll have to go beyond what we’ve mostly been saying so far, which is that right to work is “unfair” or “wrong.”

That argument certainly works for most union households and many of our community allies. But the real challenge is to convince a much broader public that a strong (and fairly-funded) labor movement is in their interest and worth preserving. Clearly most Americans aren’t yet convinced.

Many unions over the last few years have undertaken important campaigns along these lines. For example, teachers unions have positioned themselves as defenders of quality public education. Refinery workers have struck for public safety.

Nurses and health care unions have fought for safe staffing to improve the quality of care. And most notably, the Service Employees (SEIU) and others have waged the “Fight for $15” for fast food and other low-wage workers.

In its own way, each union is working hard to be a champion of the entire working class. Yet with the exception of SEIU’s Fight for $15, each is essentially focused on the issues of its core constituency at work. This still limits the public’s perception of labor.

Supporters of right to work cynically play on the resentment many workers feel about their declining standard of living. Absent a union contract, the vast majority have few, if any, ways to address it. To most, organizing looks impossible and politics looks broken.

Workers’ understandable frustration is fertile ground for the far right, which promises to improve the business climate and create more jobs by stripping union members of their power.

Thus, when we anticipate right to work’s next targets, the best defense should be a good offense—one that clearly positions labor as a force for the good of all workers.

‘Just Cause for All’

Here’s one approach that would put labor on the offensive: an initiative for a new law providing all workers with due process rights to challenge unjust discipline and discharge, “Just Cause for All.”

Such a law would take aim at the “at-will” employment standard covering most non-union workers in the U.S. At-will employees can be fired for any reason and at any time—without just cause.

While such a major expansion of workers’ rights as Just Cause for All would be unlikely to pass in most state legislatures—Montana did it in 1987, but it’s still the only one—it could become law in states that allow ballot initiatives.

A well-orchestrated attack on the at-will employment standard would force the extreme, anti-worker, and big business interests who back right to work to respond. If nothing else, imagine how competing initiatives would force a debate. On one side, extending due process protections and increased job security to all workers: a real right-to-work bill. On the other side, taking away fair share contributions for collective bargaining.

This strategy isn’t untested. When the Coors beer dynasty backed a right-to-work ballot initiative in Colorado in 2008, labor collected signatures for a counter-initiative, “Allowable Reasons for Employee Discharge or Suspension,” which would have overturned at-will employment. (Labor also supported a proposal that would have provided affordable health insurance to all employees and a measure to allow workers injured on the job to sue for damages in state courts.)

Fearing that the just cause proposal might pass, centrist business people offered a deal. In exchange for labor withdrawing its proposal, they provided financial support and manpower that helped labor defeat right to work in Colorado. (For more on this story, read “The 2008 Defeat of Right to Work in Colorado: Is it the End of Section 14(b)?” Raymond L. Hogler, Labor Law Journal, Spring 2009.)

While it’s unfortunate that the labor initiative didn’t go before Colorado voters, the result was still encouraging—and instructive. By championing the interests of all workers, labor split business and blunted the right-to-work effort.

To win back “fair-share” participation in the three new right-to-work states and stop further attacks, we’ll need well-planned campaigns that include grassroots mobilization, direct action, paid and earned media, and focused electoral work.

Just Cause for All campaigns should be part of the strategy. Even if we lose, campaigns for due process and job security for all will help shift the debate on right to work, leave the labor movement stronger—and make labor and its allies once again the champions of the “99%.”

About the Authoer: Rand Wilson is policy and communications director at SEIU Local 888 in Boston.

– See more at: http://www.labornotes.org/blogs/2015/03/viewpoint-smart-strategy-defeat-right-work#sthash.pYXbeTz1.dpuf

Aim, Shoot, You're Fired

Monday, November 7th, 2011

krischsuit2Last May, Jeremy Hoven, a pharmacist in a Michigan Walgreens was working in the rear of the store when an armed robber jumped his counter and pointed a gun at him. In response, Mr. Hoven pulled out his own gun and fired at the robber, driving him and his accomplice away, while saving himself, and all those around him. Mr. Hoven’s actions, which can be viewed here, may have been heroic, but shortly after the robbery, Walgreens fired him for bringing a gun to work and violating the store’s non-escalation policy. Mr. Hoven sued Walgreens in Berrien County Circuit Court, claiming wrongful termination in violation of his constitutional and statutory right to self-defense. Walgreens claimed in response that it had a legitimate business reason for terminating Mr. Hoven, arguing that there is no “right to carry or discharge a concealed weapon” on workplace premises, and that store employees are trained not to confront crime suspects. Over the past month, the case has been removed to the Federal District Court in Grand Rapids, Michigan.

Walgreens’ decision to terminate Mr. Hoven has infuriated the public, as well as the media, which were strong on opinion but weak in analyzing whether Mr. Hoven would win his lawsuit. That’s where LASIS comes in.

While LASIS is sympathetic to Mr. Hoven, and thankful that he was not physically harmed, we do not believe his argument of self-defense will succeed in a court of law. Michigan is an employment at will state, a state where an employer can fire an employee for any reason or no reason at all. And while it is true that Michigan courts and the Sixth Circuit recognize an employment at will termination exception if the firing is contrary to public policy, unfortunately, for Mr. Hoven, his termination was not. In fact, Michigan’s concealed weapons law explicitly states that an employer can prohibit an employee from carrying a concealed weapon in the course of employment.

Even if the Michigan concealed weapons law did not exist, a court cannot stretch public policy to include Mr. Hoven’s conduct, or else employers will be left in a serious quandary. If employers were told that in some circumstances employees could bring guns to work, under the Sixth Circuit’s theory of respondeat superior, employers in Michigan would then be liable for any action, accidental or purposeful, involving the use of that gun on the employers’ premises. Yet if employers do not permit guns at work, and a violent crime were committed on site, the employer could be held liable for any injuries.

In 1947, the Supreme Court, in Lillie v. Thompson, recognized a duty for employers to protect employees from criminal acts of third parties when the danger is foreseeable. In his lawsuit, Mr. Hoven could have argued that Walgreens was negligent because it breached a duty to protect its employees from foreseeable criminal acts of third parties. Because this was not the first time this very Walgreens was the victim of an armed robbery; On December 5, 2007, while Mr. Hoven was working the night shift, Walgreens was held up at gunpoint. A court could reasonably find that a future robbery was foreseeable, and that Walgreens should have taken protective action by, for example, installing bulletproof glass near all cash registers. On the other hand, a 1996 Sixth Circuit case ruled that an armed robbery that left one employee dead was not foreseeable because, among other things, nearly 15 months had passed since the previous armed robbery.

In 2001, the Sixth Circuit ruled on a case that again may have bearing on Mr. Hoven’s situation, holding that a negligence claim could not be proven without a showing of injury or loss caused by the employer’s negligence. Regrettably, Mr. Hoven cannot show that Walgreens caused his injury or loss because Mr. Hoven didn’t lose his job due to the employer’s negligence; rather he lost his job because he brought a gun to work.

The Occupational Safety and Health Administration (OSHA) has become increasingly involved in matters of workplace violence. Mr. Hoven could have reported Walgreens to OSHA for violating the Act’s General Duty Clause, which requires employers to provide a safe workplace for its employees. If found in violation of the Clause, Walgreens would have faced a significant fine, but Mr. Hoven would still be unemployed.

This blog originally appeared in Legal As She is Spoke, a project of the Law and Journalism track at New York Law School, on October 10, 2011. Reprinted with permission.

About the Author: David M. Krisch (3L) is a New York Law School Government Fellow, and an Executive Board Member of the Dispute Resolution Team. David is a graduate of Penn State University, where he majored in Labor Employment Relations. David has interned with two labor and employment law firms, as well as the U.S. Equal Employment Opportunity Commission (EEOC), Office of Commissioner Ishimaru, in Washington D.C.

“But I Signed An Independent Contractor Agreement…”

Wednesday, August 18th, 2010

Patrick KitchinThe Ninth Circuit Court of Appeals Weighs In On Workforce Classification Under California Law

Every time I review an independent contractor agreement I find myself humming George and Ira Gershwin’s song, It Ain’t Necessarily So from Porgy and Bess. In California, at least, such agreements do not prove that a worker is an independent contractor. (“The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.” SG Borello & Sons v. Dept. of Industrial Relations)

Were it otherwise, of course, companies and individuals who hire workers would have an incentive always to require workers to sign independent contractor agreements so they might avoid the costs associated with maintaining a workforce made up of employees. Complying with minimum and overtime wage requirements, paying workers’ compensation insurance premiums, and making rest and meal breaks available are significantly more burdensome and expensive than maintaining a workforce made up of independent contractors. Further, because independent contractors generally are not protected by federal or state anti-discrimination laws, maintaining a workforce comprised of independent contractors can shield companies from civil rights lawsuits.

California’s Multi-Factor Approach

Under California law the existence of an independent contractor agreement is only one of over a dozen factors used by the courts to evaluate whether a worker has been properly classified under the law. The most important factor is the “right to discharge at will, without cause.” In a state where employment is “at will,” but where contracts often include specific provisions pertaining to the termination of the contractor’s services, the right to fire a worker without apparent consequence is a prime indicator of an employment relationship. As the California Supreme Court ruled back in 1989, other factors crucial to the classification determination are:
• whether the one performing services is engaged in a distinct occupation or business;
• the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
• the skill required in the particular occupation;
• whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
• the length of time for which the services are to be performed;
• the method of payment, whether by the time or by the job;
• whether or not the work is a part of the regular business of the principal;
• whether or not the parties believe they are creating the relationship of employer-employee;
• the alleged employee’s opportunity for profit or loss depending on his managerial skill;
• the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers;
• the degree of permanence of the working relationship; and
• whether the service rendered is an integral part of the alleged employer’s business.

California courts are required to evaluate the specific terms of engagement carefully and analyze the conditions under which a person works for another before reaching a classification determination in a wage and hour or discrimination lawsuit. Further, under California law, one who works for another is presumed to be an employee, unless the employing party proves otherwise. The burden of proving the existence of an independent contractor relationship shifts to the “employer” to demonstrate its classification is proper once a worker presents sufficient evidence that he or she performed work for the company. Robinson v. George. This burden shifting is set out in the California Labor Code at section 2750.50.

While determining the proper classification of a worker is extremely fact intensive, and not every factor always points in the same direction, California appellate courts have been consistent in their use of the multi-factor approach set out more than 20 years ago by the California Supreme Court.

The Ninth Circuit Court of Appeals Weighs In

On August 5, 2010, the federal Ninth Circuit Court of Appeals analyzed California’s employment classification law in a lawsuit brought by “independent contractors” of a freight pick-up and delivery service who claimed they had been misclassified as independent contractors.

In Narayan v. EGL, Inc. the Ninth Circuit rejected the defendant’s contention that because its workforce signed independent contractor agreements, the court was compelled as a matter of law to find that its workers were properly classified as such.  The court applied the appropriate California classification test to the facts of the case and ruled that the relationship between the drivers and the freight-handling company was one of employment.  The independent contractor agreement was only one of several factors the court considered in coming to its Porgy and Bess conclusion:  Call it what you may, It Ain’t Necessarily So.

Evaluating the many factors deemed relevant to the determination of the nature of the relationship between the drivers and the company, the Court found, among other indices of an employment relationship, that EGL:
• trained the workers;
• provided them some tools of the trade;
• required them to wear company uniforms;
• required them to paint their vehicles in company colors;
• assigned them routes;
• required them to attend company meetings;
• required them to arrive at a company facility at a set time each day; and
• required them to apply for vacation time;

Based on its analysis of all of these characteristics of the relationship between the drivers and EGL, the Ninth Circuit determined that the lower court’s dismissal of the worker’s employment-based claims was contrary to California law. Though the drivers had signed independent contractor agreements with EGL, the facts demonstrated the workers were employees from start to finish.

While the Ninth Circuit decision in Narayan v. EGL is not earth-shattering or unexpected, the decision is important for California workers whose lawsuits are often transferred (“removed”) from state courts to U.S. District Courts within the Ninth Circuit . The decision re-affirms the Ninth Circuit’s recognition that its District Courts, like California’s Superior Courts, are obliged to use the multi-factor test set out by the California Supreme Court in S.G Borello & Sons v. Department of Industrial Relations many years ago. This is good news for California workers.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

Right-to-Work and At-Will Employment

Friday, May 15th, 2009

When I was still in college, finishing up my Undergraduate Degree, I worked in a high-end hotel in Chapel Hill, NC. In the back next to the time clock was the poster that listed your rights and responsibilities as an employee. Among those was the explanation of Right-to-Work. At the time, I didn’t fully understand it and my Supervisor explained to me that it meant that I did not have to join a Union if I didn’t want to. OK, so what does that have to do with anything? As I become more politically aware and did more work in progressive politics, I learned exactly what it meant to live and work in a Right-to-Work state.

For starters, it weakened Organized Labor’s political power to fight for better wages, better benefits, and to make sure that Union members were not terminated without cause, or At-Will. While I am a pretty independent minded person and I don’t want anyone telling me that I have to join something as a condition of my employment or as part of my way of earning a living, the part that is not talked about as much is the At-Will employment aspect.

The possibility of your job being terminated without cause has always been very unsettling to me. I have always felt that employers have a disproportionate amount of power over employees in this respect. Right-to-Work and At-Will employment are tied together very closely here in Virginia. While I can see some rational with not having to join a Union as a condition of my employment, I am absolutely opposed to the At-Will doctrine for a number of reasons.

While the At-Will doctrine can be exercised by either the employee or the employer, the opportunity for workplace abuses on the part of the employer is much greater. While I can certainly appreciate the rights of the employer, being able to hire people that are qualified and will do work that will make your business or company successful, there has to be a limit to being able to terminate someone without cause. I’ve worked with many different types of people over the years, many of whom I just as soon forget for a wide range of reasons, but what if that annoying co-worker has a point about the way things are done at their place of work and complains? Despite being annoying, they do good work, are reliable, and come to work on time, is it right to fire this person for speaking up or expressing their opinion? If sexual discrimination, or any discrimination for that matter, is occurring in the work place and someone speaks up, is it fair that that person be fired. If the employer is changing a posted schedule for employees without giving them enough notice and the employee speaks up or complains, is it right to fire them? There are other scenarios, but these are some of the ones that seem to be the most common.

In a post on a blog a few months ago, I was disappointed to read that one of the Democratic Candidates for Lt. Governor was a strong supporter of Virginia’s Right-to-Work law. Again, I can see some rational about not being forced to join a Union as a condition of employment, but the At-Will doctrine that is so closely tied to Right-to-Work law needs to change. My suggestion would be to allow businesses or companies to have the right to terminate without cause within a 60 to 90 day probationary period. After this, if an employee is to be fire it has to be for cause. The At-Will doctrine puts too much of the burden on the terminated employee to show they were fired for improper reasons, and too much power in the hands of the employer. Any other thoughts?

About the Author: Barry Butler has been active in progressive politics and social justice since 1998.  He is a native of Virginia from the Southside Hampton Roads area of Chesapeake.  He is a graduate of North Carolina Central University with a degree in Political Science and is a part-time Graduate Student at Duke University.  Barry is a trained political and community organizer, currently involved in blogging and Strategic Consulting projects.  He and his family reside in Campbell County, just south of Lynchburg, VA.

This article originally appeared in Off K Street on May 11, 2009. Reprinted with permission of the author.

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