Retaliation

Judge Acker Slightly Softens His Stance on “But For” Causation

Robert C. Lockwood
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Leave of Absence

About a month ago, I discussed a string of decisions issued by Senior United States District Court Judge William Acker.  Judge Acker has taken the position that “but for” causation prohibits an employee from making alternative claims of retaliation under Title VII, or the ADA or the ADEA. In short, Judge Acker is making employees limit their retaliation claims to only one statute. Here is a link to my previous comment:Judge Acker Comment.

In a recent decision, Judge Acker slightly softened his stance on “but for” causation. See Kirkland v. Southern Company Svcs, No. 2:15-cv-1500-WMA (N.D. Ala. March 8, 2016). In Kirkland, Judge Acker dismissed an ADA retaliation claim based upon “but for” causation. Nevertheless, Judge Acker declined to dismiss an FMLA retaliation claim. Rather than issuing a definitive decision, Judge Acker found that the issue of “but for” causation in FMLA retaliation claims “is still a toss-up in the Eleventh Circuit.” Judge Acker made clear that he thinks “but for” causation should apply to FMLA retaliation claims, but he would refrain from dismissing such claims until the issue is definitively resolved by the Eleventh Circuit.

“No Recording Policies” — 3 Lessons From the NLRB’s Most Recent Decision

Robert C. Lockwood
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In Alabama, any party to a conversation can record that conversation without the consent of the other party.  In short, if you and I are talking, I can secretly record the conversation without violating any Alabama law.

Many employers try to combat that general rule by implementing “No Recording” policies, which prohibit any type of audio or video recording in the workplace.  While secret recording does not violate Alabama law, it could violate a company policy and therefore serve as a ground for termination of employment.

In 2015, the National Labor Relations Board issued a decision finding that such a policy by Whole Foods Market violated the National Labor Relations Act.  The NLRB theorized that broad “No Recording” policies would prevent employees from engaging in conduct protected by the Act — such as making images of protected picketing, documenting unsafe work conditions, and making recordings for use in future administrative or judicial actions.

The NLRB’s decision has been appealed to the Second Circuit Court of Appeals.  Nevertheless, there are three key lessons that employers can learn:

1. Broad policies that impose a complete ban on any kind of recording in the workplace will be found by the NLRB to violate the National Labor Relations Act.

2. It may be possible craft a narrowly-tailored “No Recording” policy that will satisfy the NLRB.  The NLRB left some room in its decision to allow restrictions on recordings.  At this point, however, the NLRB has not provided clear guidance on the scope of such restrictions.

3. Before disciplining an employee for recording a workplace conversation, employers should consult with their attorney to ensure they do not accidentally violate the Fair Labor Standards Act.

The Three Most Important Things to Know About Employees on Jury Duty

Robert C. Lockwood
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Most people think jury duty is a pain in the rear.  I’ve seen and heard of some creative excuses to get out of jury duty.  There’s even a report that “Jesus Christ” was struck from jury service in Birmingham:  Jesus On Jury Duty

Jury duty can also create hardships for employers.  Nevertheless, Alabama has recognized the importance of jury duty by statutorily creating protections for employees who are called for jury service.  This is significant, because the general rule in Alabama is “employment-at-will”: an employee without an employment contract can be terminated for a good reason, a bad reason, or no reason at all.

Protection of employees serving on juries is one of the few exceptions to employment-at-will in Alabama.  Here are the three most important things to know if one of your employees is called for jury service.

 1.  You cannot terminate an employee who misses time from work for jury service.

Alabama Code Section 12-16-8.1 prohibits termination or any “adverse employment action” because an employee was called for jury service.  Notably, Section 12-16-8.1 prohibits adverse employment actions because an employee “serves” on a jury.  But, the Alabama Supreme Court has interpreted the statute to protect employees from serving in any part of the jury process — including simply being called for jury duty.

2.  You must pay an employee their regular wage for time spent in jury service.

Alabama Code Section 12-16-8(c) requires that full-time employees receive their “usual compensation” for the time they spend in jury service.  As a result, you must pay an employee if they are absent for jury service.

3.  You cannot require the employee to use leave time for jury service.

Your company may provide annual, vacation or sick leave time as a benefit to employees.  If they miss time for jury duty, you cannot require, or even request, that they use paid or unpaid leave when they are called for jury duty.  Ala. Code § 12-16-8(b).

 

Government Contractors Need to Get Ready for New FAR Confidentiality Rules

Robert C. Lockwood
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The Federal Acquisition Regulatory Council (“FAR”) has issued a proposed rule which prohibits government contractors from using confidentiality agreements to restrict employees or subcontractors from reporting fraud, waste or abuse to government officials.  That rule can be found here:  FAR Confidentiality Rule.  The Proposed Rule will apply to contracts, including existing contracts, funded by appropriations for Fiscal Year 2015 or subsequent fiscal years.

The proposed rule imposes four obligations on government contractors.

 1. Prospective contractors must include the following affirmative representation of compliance with the rule when the contractor responds to an agency request for bids:

By submission of its offer, the Offeror represents that it does not require employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign or comply with internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

2.  Any contract covered by the Proposed Rule must contain the following clause:

The Contractor shall not require employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign or comply with internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

3. Contractors must notify employees that internal confidentiality agreements covered by the Proposed Rule are no longer effective.

4. Contractors must flow-down the requirements of the proposed rule to subcontractors.

            Interested parties have until March 22, 2016 to submit comments on the proposed rule.  If you are interested, here’s a link with directions on the procedure for comments: Comments

President Obama’s Executive Order on Pay Transparency Became Effective January 11, 2016

Robert C. Lockwood
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 An Executive Order prohibiting federal contractors from engaging in retaliation became effective January 11, 2016.  That order provides that federal contractors and subcontractors cannot discharge or otherwise discriminate against employees and job applicants for discussing, disclosing or inquiring about compensation.  In short, covered employers cannot tell employees or applicants:  “Don’t talk to each other about how much you are paid.”

Among other things, the order requires that covered employers adopt a pay transparency policy statement.  The Department of Labor has provided a model statement, which  can be found here:  Pay Transparency.  Contractors must modify their policy manuals, provide employees with an electronic or physical posting of the requirements of the rule, and implement the new “EEO Is the Law” poster, which can be found here:  Poster

The order has many requirements and you should consult with counsel to ensure you are in proper compliance.

EEOC Releases Guidance Expanding Scope of Retaliation.

Robert C. Lockwood
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On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims.  The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998.  While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority.  Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly.  The EEOC’s draft guidance can be found here:  EEOC Retaliation Guidance

One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief.  Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.”  If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired.  In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis.  Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.

The EEOC will accept public comments on its draft guidance until February 24, 2016.  Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

JUDGE ACKER PROVIDES EMPLOYERS WITH A WEAPON AGAINST DISCRIMINATION CLAIMS

Robert C. Lockwood
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Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints.  In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability.  When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination.  As a result of that uncertainty, employers are often sued under multiple federal statutes:  Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.

Judge Acker is putting an end to that practice.  In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated.  Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.

As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation.  Instead, he is making employees commit to one discrimination claim.  If they refuse, he is dismissing their case in its entirety.

Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis.  Under Title VII, an employee can recover if his employer had “mixed motives” for termination.  As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win.  I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car:  LGBT Issues In the Workplace

Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals.  Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.

CAN I FIRE MY EMPLOYEE WHO KEEPS YELLING “ROLL TIDE” AT THE OFFICE?  FREEDOM OF SPEECH RIGHTS IN THE WORKPLACE

Robert C. Lockwood
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Auburn fans are just tired of it.  All they hear about is The Process.  “Nick Saban and Bear Bryant are the best coaches in the history of the universe.”  “Roll Tide!!!”

If I fire an employee who yells “Roll Tide,” am I violating his First Amendment Freedom of Speech rights?  For private employers, the legalistic answer to this question is “No.”  As discussed below, however, there is a lot of employee speech that is protected.

The United States Constitution and its amendments bestow rights on citizens with regard to their interaction with government.  As a result, the First Amendment guarantees that government will not restrict any citizen’s right to freedom of speech.  But, private employers are not the government.  As a result, from a pure constitutional law perspective, private employers are not controlled by the First Amendment.  Thus, in most circumstances, a private employer cannot violate an employee’s free speech rights.

In a private office, if my staff is composed of Auburn fans, and I am an Alabama fan, I can fire them for saying “War Eagle” in the workplace.

But, there are always exceptions to the general rule.  While the First Amendment does not protect employee speech in the private workplace, there are plenty of laws that do provide protection for employee speech.  Virtually every federal employment law protects employees who speak out against discrimination in the workplace.  The NLRB and Executive Orders from the President protect employees who speak out about working conditions — particularly employees who talk to each other about wages.

Unfortunately for college football fans, there is no law which protects employees who scream “Roll Tide” or “War Eagle” at work.  But, if your employees are making other statements that may be upsetting to you, be careful before taking action.