Catch-22: Government Customer “Suggests” Terminating an Employee

COR Contracting Officer NLRB NLRA Alabama Employment Law
What should government contractors do when their customer “suggests” terminating an employee?

In many government contracts, a contractor provides personnel who work for the government.  In most government contracts, the federal government Contracting Officer or Contracting Officer’s Representative (“COR”) does not have the power to require removal of employees of a government contractor.   In short, the COR can’t order that an employee be terminated.  But, a COR, or another government employee, can express displeasure with an employee.  As a result, my government contractor clients frequently ask me what to do when a COR, or other government employee, “suggests,” but does not require, that an employee be terminated.

Those clients are placed in a Catch-22 situation with no easy answer.  They want to keep the government customer happy to help ensure that they win renewals of the contract.  But, without explicit instructions, those contractors do not have a completely solid basis for termination.

That’s the situation that one government contractor faced in Security Walls, Inc. v. National Labor Relations Board, No. 17-13154, 2019 WL 1771291 (11th Cir. Apr. 23, 2019).  Security Walls, Inc. provided security guards to the Internal Revenue Service for its facility in Austin, Texas.  Three security guards negligently allowed visitors to enter the facility undetected.  In response, the Contracting Officer Representative wrote to Security Walls and said:  “If individual guards do not have the character and self-discipline to work at a federal installation and comply with the responsibilities associated, they will need to be removed.”

That seems like a pretty clear mandate.  Yet, the COR never explicitly said that the three guards, in particular, needed to be fired.  In fact, he suggested that the guards’ conduct did not constitute “careless behavior.”  Nevertheless, Security Walls conducted an investigation and determined that the guards violated two standards from its Performance Work Statement with the IRS.  Based on those violations, Security Walls terminated the guards.

But, the guards were members of a union, and Security Walls had a progressive discipline policy, which only permitted, at most, a two-day suspension for the guards’ conduct.  As a result, the Union filed an unfair labor practices charge with the National Labor Relations Board.  An Administrative Law Judge and the NLRB both ruled against Security Walls.  Thus, Security Walls appealed to the Eleventh Circuit Court of Appeals.

At the Eleventh Circuit, Security Walls argued that its Performance Work Statement with the IRS superseded its collectively-bargained progressive discipline policy.  The Eleventh Circuit was not persuaded.  Judge Tjoflat was skeptical that Security Walls held “a get-out-of-jail-free care when it cannot simultaneously comport with both the PWS and the NLRA.”  In fact, he found that Security Walls “might have voluntarily put itself between a rock and hard place from which there is no painless resolution.”  Nevertheless, he found that nothing in the Performance Work Statement required the guards’ termination.  Arguably, they violated the Performance Work Statement, but there was nothing in that statement mandating termination for violations.  As a result, Security Walls could comply with both the PWS and the NLRA, and the Eleventh Circuit affirmed the decision of the NLRB.

The Security Walls decision is a classic example of the difficulties faced by government contractors when a government agency suggests, but does not require, termination of an employee.  Those difficulties were compounded by collective bargaining issues.  It’s easy to “Monday Morning Quarterback” Security Walls’ termination decision and conclude that they should have followed their progressive discipline policy rather than jumping straight to termination.  But, in the heat of the moment with the IRS expressing clear displeasure over the guards’ performance, I can’t say that Security Walls’ decision was “wrong” from a business perspective.

From a business (rather than legal) perspective, Security Walls demonstrated to the IRS that they took their security obligations seriously and implemented prompt, serious consequences for breakdowns in security.  In the long-run, that business decision may outweigh the legal risks and costs associated with terminating the guards.  That risk/reward analysis must be conducted on a case-by-case basis by other contractors faced with similar dilemmas in the future.  Naturally, I recommend that contractors include their attorneys in any such analysis.

Employment Contracts and “Cause” Provisions



cause contract termination Alabama Employment law
Employers can terminate employment contracts, even if those contracts do not have a termination “for cause” provision

An employer can terminate an employment contract — even if the contract does not have a termination “for cause” provision.  That’s the lesson to be learned from the Alabama Supreme Court’s recent decision in Shoals Extrusion, LLC v. Beal, No. 1170673, 2019 WL 1748138 (Ala. Apr. 19, 2019).

Shoals Extrusion, LLC entered into an employment contract with Lonnie Beal to serve as its plant manager.   The agreement provided that Beal would work “40 plus” hours per week on the “days and the time” set by Shoals Extrusion.  If Shoals Extrusion terminated Beal’s employment during that term, he was promised a severance package of one-year’s pay and benefits.  While most employment contracts have provisions that permit termination of an employee “for cause,” Shoals Extrusion’s agreement did not.

By July 2015, there were disputes regarding Beal’s work schedule.  Shoals Extrusion’s plant initially worked a schedule beginning at 7:00 a.m., but changed its start time to 6:00 a.m.  Nevertheless, Beal refused to change his schedule and continued to arrive for work at 7:00 a.m.  Additionally, Shoals Extrusion’s owners asked Beal to work more than 40 hours per week, but he refused unless they gave him an ownership interest.  The owners also discovered that Beal was telling individuals in the industry that Shoals Extrusion was having financial problems.

Shoals Extrusion decided to terminate Beal’s employment.  On November 23, 2015, the owners met with Beal and asked him to sign a “severance and general release agreement.”  Under that agreement, Beal would receive one-month of pay and release all further rights or claims related to Shoals Extrusion.  Beal declined to sign the agreement.  Shoals Extrusion terminated his employment and refused to make the severance payment promised in his employment contract.

Beal sued Shoals Extrusion for breach of contract — arguing that he was entitled to one year’s pay and benefits.   Soon after filing suit, Beal asked the trial court to grant summary judgment in his favor — essentially finding that Beal should win as a matter of law and without a trial.  The trial court granted that motion and Shoals Extrusion appealed.

The Alabama Supreme Court reversed and found that summary judgment was improper.  In doing so, the Court was forced to distinguish an earlier case, Southern Medical Health Sys., Inc. v. Vaughn, 669 So.2d 98 (Ala. 1995).  In Vaughn, the Supreme Court ruled that an employer could not terminate a contract “for cause” if there was no provision of the agreement permitting “for cause” terminations.  Logically, Beal argued that he could not be fired for a “cause” (refusing to work at 6:00 or work more hours) if his employment contract did not have a “for cause” provision as required by Vaughn.

Nevertheless, the Court rejected that argument and adopted Shoals Extrusion’s argument.  Shoals Extrusion argued that it did not terminate Beal “for cause.”  Instead, it claimed that Beal breached his employment agreement first, and his breach excused Shoals Extrusion from any further performance — including payment of severance.  The Supreme Court found that “[w]hether Beal breached the employment agreement and whether that breach was material to the contract are ultimately questions for the fact-finder that cannot be resolved at the summary judgment stage.”  In short, the Court found that Beal’s case had to be decided at trial.

Shoals Extrusion is a good case for Alabama employers, because it gives them an argument for terminating an employment agreement — even in the absence of a “for cause” termination provision.


Mission Impossible: 11th Circuit “Clarifies” Comparator Standard

Comparators substantially similar Title VII ADA ADEA Alabama Employment Law
The Eleventh Circuit recently tried to “clarify” when a comparator is “similarly situated” to other employees.

What does it mean for something or someone to be “similar”? That was the existential question recently confronted by the Eleventh Circuit Court of Appeals in a race discrimination case: Lewis v. City of Union City, No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019.) In particular, the Court was concerned with comparators in discrimination cases.

In a typical discrimination case, an employee in a protected class (race, gender, disability, age) will claim that another employee, outside the protected class, was treated better. For example, a female employee who was terminated for tardiness will claim that a male employee was tardy but not fired. In legal jargon, the male employee is considered a “comparator.”

But, comparators need to be similar. A business can have legitimate reasons for excusing the tardiness of a high-level, salaried manager, but not a lower-level, hourly employee. I have discussed the importance of comparators in other discrimination cases Here and Here.  Courts can’t compare “apples and oranges.”  So, Lewis is an effort by the Eleventh Circuit to provide lower courts with a better analysis for reaching an “apples to apples” comparison.

The United States Supreme Court has previously held that comparators must be “similarly situated.”  But, the Eleventh Circuit, and other courts, have struggled with question of just how “similarly situated” a plaintiff and her comparators must be.  Different groups of Judges in the Eleventh Circuit have announced different standards to the point that the Lewis court concluded:  “It’s a mess.”

Therefore, the Court announced a new standard to be used in all cases going forward:  a plaintiff and her proffered comparators must be “similarly situated in all material respects.”  Great!  But, what does that mean?

At one point in the opinion, the Court suggests that “essential sameness” is a requirement.  Yet, the Court also states that the standard “must be worked out on a case-by-case basis.”  The Court also identifies four “sorts of similarities” that will underlie a valid comparison:

  1.  The compartor will have engaged in the same basic conduct (or misconduct) as the plaintiff.
  2. The comparator will have been subject to the same employment policy, guideline or rule as the plaintiff.
  3. The comparator will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff.
  4. The comparator will share the plaintiff’s employment or disciplinary status.

The Lewis Court concludes by stating that “a valid comparison will turn not on formal labels, but rather on substantive likenesses.”  Moreover, “comparators must be sufficiently similar, in an objective sense, that they ‘cannot be reasonably distinguished.'”

So, what does this mean for Alabama employers?  Generally, I think this standard is good for employers.  By using phrases like “substantial sameness” and “substantive likenesses,” the Court appears to be signalling that the standard for similarity is high.  Nevertheless, the new standard is not effective in helping employers in determining “how high” the bar is.  I feel that, in many ways, we are left with Justice Potter Stewart’s famous saying:  “I know it when I see it.”  As a result, employers in Alabama and the rest of the Eleventh Circuit must simply do their best while the Eleventh Circuit continues to flesh-out the standard on a “case-by-case” basis.



Update: Can an Employee Refuse FMLA Leave?


DOL Wage and Hour refuse FMLA leave Alabama Employment Law
The Department of Labor has found that employees cannot refuse to take FMLA leave.

By now, most employers know that they have to provide leave under the Family and Medical Leave Act to qualifying employees if that employer has 50 or more employees within a 75-mile radius.  Occasionally, one of my clients will encounter an employee who doesn’t want FMLA leave.  In most cases, the employee wants to refuse FMLA leave initially, use-up all of his/her paid leave first, and then use 12-weeks of unpaid FMLA leave.

The Ninth Circuit Court of Appeals (which issues opinions for many states on the West Coast) allows employees to expressly decline FMLA coverage. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014).  The Escriba opinion is not binding on employers in Alabama.  Only the Eleventh Circuit Court of Appeals can give us definitive guidance.  But, the Eleventh Circuit has not issued an opinion on this issue.

In my opinion, the FMLA’s implementing regulations provide an employer with very little choice on whether employees can refuse FMLA leave.  If the employer possesses information demonstrating that an employee suffers from a “serious health condition,” then the employer must designate the leave as FMLA leave — regardless of what the employee wants.  Indeed, the regulations state:  “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee [that the leave is designated as FMLA leave.]”  29 C.F.R. § 825.301(a).  Here is a good blog post discussing the pros and cons of designating leave as FMLA leave over an employee’s objection: Forcing FMLA.

Last week, the United States Department of Labor’s Wage and Hour Division weighed-in on this issue.  In Opinion Letter FMLA2019-1-A, the Wage and Hour Division expressly found:  “Once an eligible employee communicates a need to take leave for an FMLA qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”  (DOL Opinion FMLA 2019-1-A at 2.)  Thus, “the employer may not delay designating leave as FMLA-qualifying leave, even if the employee would prefer that the employer delay the designation.”  (Id.)  The DOL’s opinion also expressly disagrees with the Ninth Circuit’s holding in Escriba.

The issue of declining FMLA leave or forcing FMLA leave is a complex one.  In fact, the Eleventh Circuit has left open the possibility that an employee might be able to sue for “involuntary leave.”  While the Court has not issued a specific opinion on that issue, it has recognized that an employee might be able to sue if he/she is forced to use 12 weeks of FMLA leave and then does not have leave available for a later qualifying condition.  As a result, Alabama employers should proceed cautiously before forcing an employee to take FMLA leave.

Employment Law, Sexual Harassment, and a Piping Hot Cup of Tea


Tea sexual harassment Alabama Employment Law
Sexual consent can be comparable to tea. The tea video isn’t a great source for sexual harassment training, but does remind employees that a past relationship does not justify ongoing sexual advances.

Apparently, I live in a cave.  I was at a dinner party last week, and everybody started talking about “The Tea Video.”  I was oblivious.

I was quickly informed that one of the largest employers in North Alabama recently made their workforce watch “The Tea Video.”  Employees were told that the video was required as part of sexual harassment training.  You may have already seen this video.  My wife was quite familiar with it, and told me that it made the rounds on social media at some point in the past.  The purpose of the video is to educate the masses on the concept of sexual consent in a relationship.  For those who are likewise ignorant, here’s the video:

From a mass marketing perspective, this video is perfect.  It’s short, simple, funny and gets its point across.  Nevertheless, I don’t think it’s a great source for sexual harassment training.  Consent can be one factor to consider in a sexual harassment claim.  But, the two most important factors that an employer must stress in training are:  (1) sexual harassment will not be tolerated; and, (2) employees should immediately report any conduct that they believe is sexual harassment.

Employers should try to discourage sexual relationships between employees as much as possible.  In fact, some employers have “no fraternization” policies.  There are pluses and minuses to such policies.  If co-workers are in a sexual relationship, the Tea Video might provide some assistance to prevent future sexual harassment claims.

Many sexual harassment claims arise from failed relationships.  Jilted lovers  continue to make advances at work, and even pursue their love interest at home.  Persistent sexual advances after the end of a relationship can lead to a sexual harassment claim.  Thus, the Tea Video provides some assistance in the sexual harassment area by reminding employees that a past relationship cannot serve as the basis for continuing to pursue a love interest.

Enjoy the video.  And, on cold winter days, enjoy a piping hot cup of tea!


FMLA: Employees Without 1,250 Hours Can Still Be Protected


1,250 hours FMLA pre-eligibility Alabama Employment Law
Some employees are entitled to protection under the FMLA before working 1,250 hours.

Most employers subject to the Family and Medical Leave Act (“FMLA”) know that an employee must work at least 1,250 hours in the previous 12 months to be eligible for 12 weeks of unpaid leave.   In addition to leave, the FMLA provides employees with other protections, like the right to be reinstated at the completion of leave, the right not to have their FMLA benefits interfered with by their employer, and the right to be free from retaliation for using the FMLA.

Many employers think that an employee possesses no rights under the FMLA unless they satisfy the 1,250 hour requirement.  That is a mistaken and dangerous belief.  Even before working 1,250 hours, an employee’s right to be free from FMLA interference can be implicated.  For example, some employees become pregnant before satisfying the 1,250 hour requirement, but they will give birth and need FMLA leave after completing 1,250 hours.  An employer who terminates an employee in order to avoid future FMLA obligations violates the FMLA even if the employee has not worked 1,250 hours.

The first Eleventh Circuit case to discuss this issue was Pereda v. Brookdale Senior Living Communities, 666 F.3d 1269 (11th Cir. 2012).  In June of 2009, Kathryn Pereda notified her employer that she was pregnant and would be requesting FMLA leave after the birth of her child on or about November 30, 2009.  Pereda was terminated from employment in September of 2009.  It was “undisputed that Pereda, at the time she requested leave, was not eligible for FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event, the birth of her child.”  Pereda, 666 F.3d at 1272.  Nevertheless, the Court found that Pereda was entitled to FMLA protection:  “Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible.  Such a situation is contrary to the basic concept of the FMLA.”  Id. at 1273.  In short, the Court held that Pereda could sue for FMLA interference and retaliation — even though she had not worked 1,250 hours before she requested leave.

Employers contemplating termination or discipline of an employee who is pregnant or suffering from a serious health condition should proceed very cautiously.  Employers must consider not only whether the employee is currently eligible for FMLA leave, but also whether the employee will be eligible in the future.  Without taking all facts into consideration, employers risk an inadvertent violation of the FMLA.

Employers: Don’t Get Dragged Into the Wrong Venue in Alabama


venue county Alabama Employment Law
Some venues are better than others for Alabama employers.

In Alabama, some counties, and their court systems, are more employer-friendly than others.  That observation is a broad generalization backed-up by experience.  For example, if you conducted a poll of attorneys who represent employers, most would probably prefer to defend a case in Madison County rather than Lee County.  Therefore, the location of a lawsuit (known by the legal term of “venue”) is an important consideration for employers.

The Mercedes-Benz plant in Tuscaloosa County recently helped to establish a more employer-friendly venue rule for Alabama. See Ex parte Mercedes-Benz U.S. International, Inc., No. 1170623, 2019 WL 101144 (Ala. Jan. 4, 2009).  In that case, an employee suffered an on-the-job injury at the Mercedes plant in Vance, which is located in Tuscaloosa County.  He sued for workers’ compensation benefits in his home county, Jefferson County.  Mercedes wanted the case to proceed in its home county and filed a motion to change venue to Tuscaloosa County.

Alabama’s venue rules provide that an employee/plaintiff can sue a corporation in his home county “if such corporation does business by agent in the county of the plaintiff’s residence.”  The Mercedes plant purchases parts used in manufacturing automobiles from multiple suppliers located in Jefferson County.  Therefore, the employee claimed that Mercedes “does business” in Jefferson County when it purchases parts there.  The trial court in Jefferson County agreed and refused to transfer the case to Tuscaloosa County.

Mercedes immediately requested review by the Alabama Supreme Court.  A previous decision from that Court, Ex parte Scott Bridge Co., 834 So.2d 79 (Ala. 2002), held that a bridge company purchasing parts, tools and equipment for bridge building could be sued in Chambers County, where it purchased those items, even if it was not building a bridge in Chambers County.  Thus, Scott Bridge appeared to support the employee’s contention that Mercedes’ purchase of parts for automobile manufacturing in Jefferson County could support venue there.

The Alabama Supreme Court overruled Scott Bridge and held that “[t]he regular purchasing of parts or materials from a supplier located in a certain county, by itself, does not constitute ‘[doing] business by agent’ in that county ….”  In Mercedes’ case, the Court found that the purchase of supplies was “merely incident” to its business, and that Mercedes “is not exercising a business function for which it was created, i.e., manufacturing automobiles [in Jefferson County].”

The Court did not provide us with a clear rule for determining venue in future cases.  Nevertheless, it is clear that the analysis will focus on whether a corporation’s acts in a county are “merely incident” to business or part of the “a  business function for which it was created.”  That analysis is more employer-friendly and will narrow the number of counties in which any particular lawsuit can be filed.


Government Shutdown: Salary/Overtime Issues for Contractors


government shutdown wage and hour Alabama Employment Law
The government shutdown causes issues with payment of employees for government contractors.

The federal government is in another shutdown.  Obviously, there are many thorny political issues behind the shutdown.  But, there are also practical and legal issues that arise for employers.  In particular, government contractors have employees that want to work and be paid.  One particularly difficult area involves payment of employees who are exempt from overtime.  Contractors need to make sure that they do not accidentally lose the exemption for employees who only work part of a week because of the government shutdown.

In order to be exempt from overtime, executive, administrative and professional employees must paid on a “salary basis.”   To be paid on a “salary basis,” an employee must receive in each pay period a predetermined amount that constitutes all or part of their compensation, and that compensation cannot be reduced because of variations in quality or quantity of work. In other words, you must pay an exempt employee their full salary for any week in which they perform any work regardless of the number of days or hours they actually work.

So, what if you have an exempt employee who is required to report to their government facility today, only to be told that they are non-essential and must return home.  Do you have to pay that employee a full week’s salary, even though they reported to work for an extremely short period of time?  In short:  “Yes.”

But, what about next week?  If the shutdown continues, and the exempt employee performs no work at all next week, are your required to pay them their full salary?  In short:  “No.”  The Fair Labor Standards Act’s implementing regulations provide: “Exempt employees need not be paid for any workweek in which they perform no work.”  Here, it is crucial that employees perform no work at all.  In this electronic age, there is an argument that checking work e-mail can constitute “work.”  Therefore, if government contractors want to ensure that they are not responsible for salary during the government shutdown, they should explicitly instruct exempt employees not to check e-mail or conduct any work-related activities during the shutdown.

Some of my clients believe there are exceptions for partial-week “furloughs” of employees.  In the vast majority of cases you cannot “furlough” an exempt employee without risking loss of the exemption.  If you want to require exempt employees to work for a partial-week, and only pay the for the partial week, you should consult with your employment attorney.

Federal Courts Frown on “Shotgun Pleading.”


shotgun pleading Alabama employment law
“Shotgun Pleading” creates problems in employment litigation.

As I drafted today’s post, a couple of colloquialisms came to mind.  First:  “Shoot first and ask questions later.”  Second:  “Sometimes, less is more.”  Federal judges are more fond of the second saying.  Frequently, lawyers file complaints (the document that starts a lawsuit) in a broad manner — including all possible facts and all possible claims — without specifying which facts apply to which claims.  In the legal profession, this is called “shotgun pleading.”  Federal judges don’t like shotgun pleading and two of our judges in the Northern District of Alabama recently entered decisions related to shotgun pleading.

In Roney v. City of Huntsville, No. 5:18-cv-1482-CLS, 2018 WL 632483 (N.D. Ala. Dec. 4, 2018), Senior United States District Court Judge C. Lynwood Smith, Jr. provided a synopsis of the different types of shotgun pleading:

  1.  A complaint containing multiple counts/claims, where each count adopts the allegations of preceding counts.  This is a well-worn practice in Alabama, and I think it evolves from fears that a lawyer doesn’t want to accidentally omit something from a claim.  So, the lawyer will start each claim in a complaint with something like:  “Plaintiff incorporates all of the allegations and pleadings in the preceding paragraphs as if set forth fully herein.”
  2. A complaint “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.”
  3. A complaint which fails to separate into a different count/claim each cause of action or claim for relief.
  4. A complaint which asserts multiple claims against multiple defendants, but fails to specify which defendants are responsible for which acts or omissions, or against which of the defendants the claim is brought.

Roney is a Title VII action in which Judge Smith granted a motion to dismiss the employee’s shotgun pleading.  He concluded that the complaint fell into the first and second types.  Most particularly, Judge Smith faulted conclusory pleading such as:  “she was subjected to a sexually hostile work environment by her supervisor ….”  Roney, 2018 WL 6326483 at *4.  It appears that a better pleading would have identified the specific actions of the supervisor that amounted to a hostile work environment.  While Judge Smith granted the motion to dismiss, he also gave the employee an opportunity to file a subsequent complaint that would not contain the same defects.

Judge Annemarie Carney Axon also found that the employee filed a shotgun pleading in Hawkins v. Holy Family Cristo Rey Catholic High School, No. 2:18-cv-00638-ACA, 2018 WL 6326485 (N.D. Ala. Dec. 4, 2018).  She found that the complaint filed by the employee in that Title VII case was a Type 1 and 3 shotgun pleading.  Nevertheless, she continued to review the complaint and found that a partial dismissal was warranted.

Employment litigation is a specialized field and litigating in federal court requires precision.  The Roney and Hawkins cases demonstrate that a lack of precision, and reliance upon a shotgun approach, can be detrimental to an employee’s case.


Is Your Christmas Party a Form of Religious Discrimination?


Christmas Title VII religion religious Alabama Employment Law
Christmas celebrations can cause legal problems for employers.

Merry Christmas!!  December 25 is just around the corner.  Many employers hold a Christmas party to celebrate this time of the year.  But, not all employees are Christians.  Many don’t celebrate Christmas.  Could your Christmas party be a form of religious discrimination?

In summary, Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of religion. The word “religion” in Title VII includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.”  42 U.S.C. § 2000e(j).  Therefore, an employer has a statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.  Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012).

Generally, my advice is to make sure employees enjoy the holidays and Christmas celebrations.  You won’t violate Title VII merely by having a Christmas party.  But, you get closer to trouble if you require employees to attend a Christmas party, or take action against them because of their refusal to participate in Christmas activities.  If an employee has a reasonable religious objection to a holiday activity, try to work with them to resolve their objections and accommodate their beliefs.  If their religious objection puts an undue burden on your business, call your lawyer before taking any specific action.  Following is a discussion of a few cases involving allegations of religious discrimination at Christmas.

Close to home is the decision in Chandler v. Infinity Ins. Group, No. 2:12-cv-2870-TMP, 2014 WL 2547826 (N.D. Ala. Jun. 4, 2014).  In Chandler, the employee was a Jehovah’s Witness.  She alleged that her employer discriminated against her by forcing her to attend a Christmas party in violation of her religious beliefs.  Magistrate Judge T. Michael Putnam dismissed the employee’s claim, however, because she never informed anybody that attending a holiday party would conflict with her sincerely held religious beliefs.

A slightly different fact situation was presented in Mitchell v. American Eagle Airlines, Inc., No. 15-757-SDD-RLB, 2017 Wl 2588597 (M.D. La. Jun. 14, 2017).  In Mitchell, a Jehovah’s Witness employee claimed that she suffered religious discrimination when her employer made her work after she refused to attend a Christmas party.  The trial court dismissed that claim, primarily because the employee failed “to demonstrate how working during a Christmas party is a cognizable adverse employment action under the law.”

At least one court has found that an employer may refuse an employee’s request to attend Christmas social gatherings — even when those gatherings are closely tied to Christmas mass.  See Duran v. Select Medical Corp., No. 08-cv-2328-JPM-tmp, 2010 WL 11493117 (W.D. Tenn. Mar. 19, 2010).  In Duran, the employee was scheduled to work as a charge nurse on Christmas day.   She made multiple requests to be off-work that day, including a letter to the CEO that concluded:  “I would like to remind you that I and my family are Catholic and Christmas day is a very special holy day for us.”  Despite those requests, the employee was still required to work on Christmas day.  The evidence showed that the employee celebrated Christmas mass from midnight to 1:00 a.m. on December 25.  Then, she participated in a family meal and exchange of gifts at home until approximately 5:00 a.m.  She was required to be at work at 7:00 a.m.  The Court concluded that “the family meal and gift exchange that followed Christmas Mass are not religious practices or observances protected by Title VII.  …. Title VII does not protect purely social events.”  The Court found that attendance at Christmas Mass is a protected religious observance, but there was no conflict between a mass that ended at 1:00 a.m. and a work schedule beginning at 7:00 a.m.

In at least one case, an employer was required to endure a trial to decide whether an employee was compelled to wear a Santa hat during the holiday season.  Velez-Sotomayor v. Progresso Cash & Carry, Inc., No. 01-1678, 279 F.Supp.2d 65 (D.P.R. 2003).  The employer required all employees to wear Christmas hats, and the employee refused because of her Jehovah’s Witness beliefs.  The employer then suspended her with pay during the Christmas season.  The employer’s main defense was that the employee could not explain why wearing a Christmas hat violated a sincerely held religious belief.  The trial court found that a jury should resolve that issue.

I hope that all of your days are merry and bright during this Holiday Season!!