In settlement agreements, it is quite common for the parties to insert confidentiality provisions, such as the following: "The plaintiff shall not either directly or indirectly disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this agreement . . . a breach . . . will result in disgorgement of the plaintiff's portion of the settlement payments."
In a case involving the above confidentiality provision, four days after the agreement was signed in 2011, the defendant employer notified the plaintiff employee that he had breached the agreement based on the Facebook posting of his college-age daughter, wherein she stated, "Mama and Papa Snay [plaintiff] won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer . . . ."
Because of the alleged breach of the settlement agreement, the employer refused to pay the settlement amount, arguing that the statement in the daughter's Facebook constituted a breach. The plaintiff's deposition was taken and he admitted that he told his daughter about the situation, and the court found that the fact that he knew he needed to tell his daughter something did not excuse his breach. The daughter then did precisely what the confidentiality provision was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school. Thus, the plaintiff lost the case, and had to return the settlement monies. Gulliver Schools, Inc. v. Patrick Snay, 121 FEP Cases 1421 (Florida District Court of Appeals, 2014).
There has been a lot of national publicity given recently after a 300+ pound Miami Dolphin tackle left the team and filed grievances of player misconduct against a teammate, a 300+ pound guard. The facts in this situation are murky, but apparently the incident was part of a hazing culture involving newer team members, goading and other incidents that got increasingly more aggressive. Incognito allegedly sent his younger teammate text messages and left him voice mails that were threatening and racially charged.
In any event, the professional football team, the Miami Dolphins, has issued press releases indicating among other things in a response to allegations that the team fostered an unhealthy work environment, "We take this seriously."
Some reports indicate that bullying is widely present in the schools and workplaces, and that employees who are bullied have more absences, tend to take more leave, and have greater turnover. Such bad behavior affects co-workers in addition to the person being bullied. Further, other surveys indicate that most employees do not report such bullying, and if they do report it, little or nothing is done about it.
There are many reasons for the lack of action on the part of employers. Workplace bullying is hard to define or correct, and it is not currently illegal per se anywhere. Although many states have tried to pass anti-bullying laws, there are none currently in existence. Even the U.S. Supreme Court has noted in its sexual harassment cases that currently federal discrimination laws are not a "civility code."
A particular danger is that workplace bullying can easily become harassment that is currently prohibited by the discrimination laws, as the bullying apparently developed in the Incognito situation. There is a recent major jury verdict in which a disabled employee recovered almost one-half million dollars claiming that a store manager made his life miserable because of his disabilities and verbally bullied him. It is easy to see how a pattern of bullying could lead to claims of a hostile work environment based on race, sex, or some other protected category.
A 2010 study found that some 50% of employees in the U.S. had either experienced workplace bullying first-hand, or witnessed it. Some 62% of workplace bullies are males, and 38% are females, according to the study.
Opinions differ as to whether employers need special policies directed towards bullying, or instead may rely on rules that require employees to treat others with courtesy and respect. Such a policy could be broadly drafted as "Respect in the Workplace." In drafting such a policy, however, employers must be wary of chilling free speech or creating unfair labor practice issues under the Labor Act. A recent NLRB case, for example, litigated the issue whether a hospital lawfully discharged two nurses for exhibiting intimidating and bullying behavior to recently hired employees, and whether its conduct rules prohibiting, among other things, intimidation, profane and abusive language, rude and condescending behavior, and disruptive behavior are clear and narrow enough to avoid "chilling" protected free speech of union and other concerted activities. William Beaumont Hospital, 198 LRRM 1358 (ALJ, 1/30/14). Any such policies should provide clear channels for reporting incidences of bullying, much like the concepts outlined in employers' sexual harassment complaint procedures. Bullying complaints should be investigated similar to harassment claims, and remedial action taken when violations are found.
In a bid to boost the workforce participation of individuals with disabilities and veterans, the Office of Federal Contract Compliance Programs (OFCCP) has issued new rules that became effective on March 24, 2014. These new rules apply to all Federal contractors subject to Executive Order 11246.
The new disability-related rules:
• Establish a "utilization goal" of 7% for individuals with disabilities at the job group level in every covered workforce. This means that in a job group with 100 employees, 7 should be individuals with disabilities. OFCCP stresses that this is not a quota but only a “goal,” and that failure to reach that percentage mark, alone, will not lead to penalties or sanctions;
• Require employers to invite job applicants to voluntarily self-identify on specially designated OFCCP forms as individuals with disabilities at the pre-offer stage (in contrast to the Americans with Disabilities Act (ADA), which forbids employers from inquiring about disabilities until a job offer has been made);
• Require employers to invite existing employees to self-identify as individuals with disabilities; this disability survey must be completed within the first year after becoming subject to the new rule and employers must use the self-identification form created by OFCCP to conduct this survey; for contractors already subject to these provisions, this one year period begins to run starting on March 24, 2014, the effective date of these new regulations (thus a current contractor would need to conduct this disability survey of their workforce before March 24, 2015);
• Once this initial disability survey is completed, the contractor must conduct a new updated survey at least once every five years; in addition, at least once between each five-year re-survey period, the contractor must remind its employees that they may voluntarily update their disability status;
• Require contractors to collect statistics regarding the number of disabled job applicants and employees, ostensibly to promote greater accountability for employment decisions and practices;
• Require contractors to advise sub-contractors in specific terms to promote compliance; and
• Make changes to the definition of “disability” required by changes to the ADA.
The new rules pertaining to veterans:
• Require covered employers to collect data reflecting their efforts in recruiting and hiring veterans and compare it to the currently set "benchmark" of 8% for veterans in the entire workforce (OFCCP will update this hiring benchmark annually or the contractor can calculate its own benchmark taking into account various factors);
• Gather statistics showing the number of veterans who apply for jobs and are hired by inviting applicants to voluntarily self-identify as a veteran on forms created by the contractor;
• Require posting job opportunities with appropriate state employment services;
• Require contractors to advise sub-contractors in specific terms to promote compliance, noting applicable preferences for veterans; and
• Repeal certain portions of outdated and superseded regulations.
The final rule also requires covered contractors to annually record the number of job openings, number of jobs filled, number of applicants for all jobs, number of applicants who self-identify as being a protected veteran or having a disability, the number of applicants hired, number of applicants with disabilities hired and number of applicants hired who are protected veterans. While this data can be compiled for a contractor’s entire workforce, since OFCCP audits will continue to be based on a single establishment, contractors may want to maintain this data separately for each establishment.
Contractors that are required to complete affirmative action plans annually do not need to make any revisions if their plan is in place by March 24, 2014. Only affirmative action plans that are drafted or renewed after March 24, 2014 must comply with the new regulations. The new rules also extend the record retention period to three years for all relevant records related to protected veterans and individuals with disabilities.
Although they are variously presented as "utilization goals" or "benchmarks," several decades of experience with OFCCP suggests that the agency will, in fact, treat these desired percentages as quotas. Inviting individuals with disabilities to "self-identify" as disabled may well produce unintended consequences and fuel failure-to-hire discrimination charges. On the other hand, the Supreme Court has so expanded the definition of "disability" that many employers may find, to their surprise, that covered individuals make up far more than the desired 7%. The data collection and reporting requirements for both rules represent a significant expansion of OFCCP’s already onerous compliance burden.
A recent case demonstrates a dilemma many employers face in defending legal claims. A plaintiff employee may successfully sue and recover only a small amount of money, but under the various discrimination laws, the laws generally provide for the employer to pay the prevailing plaintiff's attorneys' fees.
In a recent decision, the plaintiff's employee obtained less than $8,000.00 in damages, but the federal appeals court required his employer to pay his attorneys' fees of more than $104,000.00. Diaz v. Jiten Hotel Management, Inc., 121 FEP Cases 1 (C.A. 1, 2013).
Editor's Note: The author can't resist telling the story of a case he tried in Alabama some 20 years ago. The plaintiff was a young male employee who claimed he was sexually harassed by his attractive but older female supervisor (the plaintiff was engaged and his fiancé heard about the situation). Both the employer and the female supervisor were sued for sexual harassment, and also the employer for retaliation because the plaintiff complained about the harassment, and shortly thereafter was laid off. The employer tried to settle the case, but the plaintiff's settlement demands were six figures.
The jury returned a verdict against the employer for $15,000, and against the female supervisor for $1 (this is not a misprint). The author was heavily congratulated by the client for the "victory" because the jury verdicts were so low in comparison to the plaintiff's pre-trial settlement offers. Unfortunately, the employer later paid the plaintiff's attorney fees, a bill of some $60,000.
It is rare for defamation claims by or against unions to successfully proceed in a union environment, but a recent case makes an exception. Thomas v. Steelworkers Local 1938, 37 IER Cases 1233 (C.A. 8, 2014). The supervisor at a steel mill established a claim subject to jury trial alleging that the vice president of the union defamed him regarding incidents between the supervisor and various employees. Various statements about the supervisor that he was a "prick, he is tired of [his] crap, and he is not going to put up with his s*** any more" were found to be simple statements of opinion, and thus not actionable as defamation. However, statements by the union official that he had received "twenty complaints on [him]" that "[he] has been verbally abusive to others for the past five years" and that "[he] has been making threats and throwing his weight around for the past five years" were all statements asserting that the supervisor had been harassing his crew for at least five years. The federal appeals court, interpreting Minnesota's state law, concluded that such statements implies a specific type of reprehensible conduct that are capable of being proven false, and thus there were sufficient genuine disputes of material fact regarding the element of falsity to make the statements actionable and subject to a jury trial.
The court also concluded that the statements were not entitled to a qualified privilege, because they were made in a situation which was not the proper occasion for the union to make statements about the alleged behavior. The court also noted that the union official had failed to investigate any of the complaints prior to his statements which prevented such statements from being based upon reasonable cause.
Editor's Note: Defamation claims in the workplace rarely succeed because of various privileges relating to statements made in the course of investigations and/or various labor law pre-emption issues. Further, many such statements are deemed only one of opinion and thus not defamatory. Nevertheless, as this case reveals, there are exceptions to such general rules.
Employers are now confronting several issues involving off-duty marijuana use. First, there is a new type of "synthetic" marijuana that is not prohibited by many laws. Second, many states have passed laws allowing medical use of marijuana. Third, in at least three states, state law allows the legal use of marijuana for recreational purposes. These issues pose dilemmas for employers, particularly since, unlike other drugs, marijuana can show up in drug testing for weeks after it is used. Further, many states have laws protecting employees who take part in legal activities outside the workplace. On the other hand, certain employers such as federal contractors and those involved with the Department of Transportation, must comply with federal zero-tolerance drug standards.
The courts have addressed and resolved many of the issues, but some questions remain. There is case law in Colorado, where recreational use of marijuana is legal, indicating that marijuana usage is not a protected "lawful activity" because pot is federally prohibited. The plaintiff was a quadriplegic who was authorized to use the drug medically, and had a particularly appealing case, and the appeals court ruling upholding the employer's policy was by a divided court. The case is being appealed to the Colorado Supreme Court.
Most commentators believe that as long as marijuana usage is prohibited by federal law, that employers may prohibit such usage and discipline employees who test positive. It is suggested that this point be made clear in company policies, including the desirability of referring specifically to the federal prohibition of marijuana in their policies.
There are still difficult policy decisions for employers to resolve, since the case law will continue to develop, particularly in the case of medical marijuana uses. Employers are reluctant to become "test cases" while at the same time they do not want to tolerate marijuana usage. This is a particular problem for multi-state employers, who may have to either adopt state-by-state policies or make special exceptions in their policies for some states.