Last week, Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board officials cautioned employers who check prospective employees’ social media during the hiring process. Any personal details or opinions discovered on a prospective employees’ social media should not be considered in a hiring decision, though a hiring manager cannot be prevented from discovering those personal details or opinions.
In several places in the country, creative plaintiffs' attorneys have brought civil assault claims on behalf of their employee clients who alleged they have been harassed in the workplace. Civil assault claims do not require evidence of membership in any protected category or a showing of physical injury; rather, the plaintiff only must show that a threat was made by a member of management and that the employee was subjectively in fear of physical injury.
Courts have made it harder for employers to send employees FMLA notices of late. A couple of months ago, one federal court found that an FMLA notification sent by regular U.S. mail was not reliable because the employer could not confirm whether or not the employee actually received it. Then last week, a different federal court found that notices sent by email were also unreliable. The court found that the transmitting of an email, without any proof that it was actually received and opened, only constitutes constructive notice of receipt.
Employers must be aware that the Equal Employment Opportunity Commission (EEOC) has continued to challenge severance agreement releases obtained from departing employees that contain overly broad language in violation of federal law. One common example is a broad covenant by the employee not to sue the employer for any reason. Such a covenant is illegal; rather, such a clause should recite that the employee may file an EEOC charge, but releases any right to a financial recovery from such a charge.
Deciding who is an independent contractor and who is an employee is tricky business and leaves companies vulnerable not only to Department of Labor investigations, but also to NLRB investigations. Recently, the NLRB revisited the issue of FedEx drivers and found that they are employees for organizing purposes. The drivers sought to organize a union and FedEx refused to recognize or bargain with the union.
A recent case demonstrated the need to thoroughly investigate all claims of sexual harassment in the workplace, as it is impossible to know the limits of human misconduct without investigation.
Last month, the Second Circuit Court of Appeals upheld a lower court decision dismissing a discrimination claim brought by a former New York City firefighter suffering from Asperger’s syndrome who was terminated by the City for misconduct. The City alleged that it fired the plaintiff for insubordination, use of profane language and threats to co-workers of serious bodily harm.
In negotiating employment agreements, employers and employee executives often discuss the issue of severance. In a prior post, we described some examples of “cause” that are often included in employment agreements to enable an employer to terminate the agreement without paying severance. There are other agreement termination events that are frequently negotiated such that they do require the payment of severance. The employee’s death or disability is usually included in this category.
Last week the NLRB announced that it unanimously ratified numerous administrative and personnel actions it took when it lacked a constitutionally-valid quorum. In June, the Supreme Court ruled in the Noel Canning decision that the recess appointments to the NLRB made by President Obama were invalid, and called into question case decisions and official actions taken by the agency during the 18-month period in which it lacked the needed quorum of three members. The ratification is an attempt by the NLRB to circumvent the Noel Canning decision.
In New York and most other states, employment is presumptively at-will, meaning both employer and employee are free to terminate the employment relationship at any time, for any reason. As with many legal precepts, the employment at-will doctrine has many exceptions, and we have written often in this blog about protected-category discrimination as the most common employment at-will exception. Another at-will employment exception is the employment agreement, which many executives have leverage to demand as their careers mature.