September 2017

FIRING OVER COMMENTS ABOUT DIVERSITY PROGRAMS,

RACIAL TAUNTS ON PICKET LINES, AND SUPREMACIST RALLIES

Several incidents have occurred over the past week or two that create fascinating (at least for lawyers) legal and strategic issues.  The most well-publicized of the incidents occurred when a Google engineer was fired for writing and distributing a memo criticizing his employer’s gender diversity program.  The second occurred when an employer fired a union picketer for yelling racial taunts at persons crossing the picket line.  A third occurred when an employer fired an employee for participating in what some considered a white supremacist rally in Charlottesville.  These three seemingly different actions raise certain common issues of what constitutes free speech and protected activity by employees, as opposed to an employer’s right to terminate employees for violating company rules.

The Google situation received the most publicity, and started when a Google engineer wrote a controversial 10-page memo on an internal Google site that questioned the company’s gender diversity program policies, which became widely circulated.  Among other things, the engineer, the now famous James Damore, complained that Google’s efforts to boost diversity were themselves forms of discrimination that are "unfair, divisive, and bad for business."  The memo also went on to discuss why he believed women, on average, may not be as biologically suited for roles in technology.

Traditional labor and employment law rules give employees the right to speak out and complain about workplace issues, such as perceived discrimination, or to oppose practices they deem to be unlawful discrimination.  At the same time, traditional labor and employment law rules give employees the right to terminate employees that engage in discriminatory acts or create a hostile work environment.

The New York Times quoted an email from Damore that read: "As far as I know, I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does." 

Google fired Damore over the memo, but sent out a carefully worded note explaining "much of what is in that memo is fair to debate . . . ."  "However, portions of the memo violate our code of conduct and cross the line by advancing harmful gender stereotypes in our workplace."  As an interesting follow up, WikiLeaks founder Julian Acing criticized Google’s "censorship" and offered Damore a job.  Damore also had suggested in his memo that Google suppressed politically conservative thought in the workplace, and his comments about biology are significant since he held an advanced degree from Harvard in Systems Biology. 

Damore has filed a charge with the National Labor Relations Board (NLRB), and may pursue other legal actions.  Many commentators feel that raising concerns about being excluded because of gender and/or race, or about preferences being given to others because of gender and/or race, is protected speech.  But many also believe that a portion of the memo suggesting stereotypes about women or any other group, may have crossed the line.   These suggestions are why Google’s explanations for the firing are so interesting, as they draw these distinctions.  A real irony pointed out by the Wall Street Journal is that Google itself in defending certain gender disparity issues in government investigations is arguing certain defenses like Mr. Damore asserts in his memo.  Another irony is that publicly Google has supported free speech but the message from the firing of Mr. Damore is "be careful about what you say about diversity, regardless of the side of the issue you are on."

At the same time the Google situation was going on, in August, a federal appeals court upheld a ruling by the NLRB that a union strike picket was unlawfully terminated for yelling what many would consider racial taunts to persons crossing the picket line.   The NLRB administrative law judge acknowledged the employee’s comments were "racist, offensive and reprehensible," but said the company violated federal labor laws by firing him for a legally protected collective bargaining activity of participating in a strike that did not involve violence.  The company ultimately appealed the ruling and argued that it has a right to enforce rules against racial harassment, but a divided U.S. Court of Appeals for the 8^th Circuit said federal anti-discrimination laws did not require the company to go so far as to fire the picketer.  Cooper Tire v, NLRB,2017 WL 3388971 (8^th Cir. 2017).

The NLRB and the appeals court refused to accept the employer’s argument that firing a striker yelling racial taunts to strike breakers who crossed the line made the otherwise legal picketing activity unprotected.  It is hard to reconcile the ultimate legal ruling in the strike breaker case with the situation involving the Google engineer.

Further dilemmas are created by looking at the situation from the allegedly "white supremacist" rally in Charlottesville, where a restaurant fired an employee for participating in the rally by identifying him in a photo.  Some say the rally was not a supremacist rally at all, but instead an "alt-right" rally.  In any event, photos indicated that participants carried torches and reportedly chanted "white lives matter."  This situation is extremely significant because such a person’s presence in the workplace might be distracting by generating conflict among co-workers.  Nevertheless, general legal principles indicate that such controversies do not allow an employer to terminate an employee for protected conduct.  Further, many states have laws protecting legal conduct by off-duty workers. 

Editor’s Note: The answers to the issues raised by these three current situations are not easy.  One thing is for sure, the Google official’s announcement of the reasons for terminating the engineer obviously were assisted by a competent labor and employment lawyer.  Google was careful to separate what might be unprotected conduct from protected conduct, and was careful to explain the reason for the termination as only referring to the unprotected conduct.       

RECORD RETENTION POLICIES AND TEXT MESSAGING

It should be no surprise to employers that issues are now arising concerning text messages that are similar if not identical to issues over the last few years pertaining to retention of emails.  In significant litigation, each side seeks to gain access to emails of the other parties that might assist their position in the case.  Legal rules require employers to retain documentary evidence, which could include text messages as well as emails, at the point the employer reasonably should have known that the evidence may be relevant to anticipated litigation.  An employer that fails to retain such evidence is not only potentially subject to the assessment of fines or attorneys’ fees and costs, but conceivably might be subject to an adverse inference known as "spoilation," in which the other party either wins the case subject to a favorable inference that the lost evidence would have benefitted the opposite party.  The destruction of evidence in certain circumstances can in theory determine the outcome of a case.  

For many years, employers struggled with the use of emails and the business practice essentially developed that it would be impractical to prohibit emails, but that certain record retention policies were necessary.  The same situation applies today to the use of text messaging.  In theory, similar if not identical legal rules for text messages apply as did previously with emails.

There are various approaches employers can take to using and preserving text messages.  These approaches range from prohibiting their use, methods of providing copies, or using employer-provided equipment.  There may be technical solutions to these issues, but in some of them, it is still up to each individual employee to comply with the employer’s policies.

UPS SETTLEMENT REMINDS EMPLOYERS OF "MAXIMUM LEAVE" ISSUES

UPS has just settled a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) alleging the company’s inflexible leave policy discriminated against disabled workers.  The fact pattern of the lead claimant shows the type of situations that generate these issues.  An employee took a 12-month leave of absence, returned to work for a few weeks, but then required more time off.  She claims she could have returned to work after an additional two-week leave, but UPS fired her for exceeding its 12-month maximum leave policy.  The case is EEOC v. United Parcel Serv., Inc., No. 1:09-cv-05291 (N.D. Ill.), proposed consent decree 7/28/17. 

The case was settled before being finally resolved, but the judge hearing the case had rejected UPS’s argument that its 12-month leave maximum was a permissible attendance policy under the ADA because regular attendance is an essential job function with workers.  The EEOC has consistently argued against employer maximum leave policies and addressed its position in a May 2016 resource document.

In an unusual part of the consent decree, UPS agreed to include the requirement that human resources personnel seek legal counsel before firing a worker who has reached the end of a medical leave of absence.  UPS also agreed to pay some $2 million to be distributed among more than 70 workers affected. 

Editor’s Note: This firm has provided numerous articles in previous newsletters giving employers suggestions on how to avoid the problems faced by UPS.  These potential solutions include adding wording into the policies or to individual employees near the end of their maximum leave that they must reapply for any extensions of their leave, and any such extensions are to be considered provided they are reasonable and do not work an undue hardship on the company.  Case law suggests that extensions need not be for an indefinite period, but the issues are so controversial that advice of counsel is helpful.

HOLD UP ON THOSE OSHA INJURY REPORTS

OSHA adopted a rule during the Obama Administration requiring certain employers to file their annual injury and illness summaries (Form 300A) electronically summarizing the number of on-the-job deaths, injuries and illnesses, and recordable incidents causes in workplaces.  While the form does not include details of each incident or the number of employees at the work site, OSHA had planned to publicize much of the information on its website.  Many groups objected to the regulation and it was challenged in at least two federal court cases.  The cases were put on hold when the Department of Labor (DOL) announced on June 27, 2017, it was reviewing the rule and moving the deadline for filing such information from August 1 to December 1. 

Because of the uncertainties as to when or if the electronic requirement will continue, and in what form, there are some advantages to employers to await such a final resolution.  For example, even if the DOL accepts the data but does not publish the information on its website, outside groups may try to obtain reports through Freedom of Information Act requests.  

NEW FORM I-9 MUST BE USED STARTING SEPTEMBER 18, 2017

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Instructions for how to download Form I-9 are available on the Form I-9 page. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9.

The new Form I-9 revises the List of Acceptable Documents as follows:

• The Consular Report of Birth Abroad (Form FS-240) has been added to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
• The certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C #2 in List C.
• All List C documents, except the Social Security card, have been renumbered. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

These changes have been included in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also easier for users to navigate.