Archive for the ‘Discrimination’ Category

You just found out that your employee is pregnant, what do you do!? First, take a deep breath and relax. Employers sometimes go a little cuckoo when they learn that an employee is pregnant, but you don’t need to do this. Pregnant employees really are people too. They are in fact the same employee they were the day before you learned that they were pregnant.

I could bore you with a lot of detailed laws on pregnancy discrimination and maternity leave, but you can find that information on a hundred different websites. I’ll boil it down for you. Treat pregnant employees like everyone else, except when you have to treat them differently. Easy, right? It’s actually not that bad.

Generally, you should treat pregnant employees like anyone else. They have the same job expectations as before they were pregnant. Might not they have to go to the doctor’s for appointments you ask? Yes, and so do other employees. Might they become physically unable to do certain physical tasks? Yes, as could any employee. Provide them with reasonable accommodations. Might they have complications and require a leave of absence? Yes, as might any other employee have medical issues that require a leave of absence.

Pregnant employees are not treated that differently for leave under the FMLA (applies to employers of over 50 employees). They get the same 12 weeks of leave that employees with a serious medical condition get, and the same rights of reinstatement. The Massachusetts Maternity Leave Act applies to employers of six or more employees, and the leave required is 8 weeks. This is different because the statute applies specifically to pregnant employees and employees who have recently given birth. There is no other type of employee under Massachusetts law who is entitled to specifically 8 weeks of leave.

Here’s what you don’t do. Don’t decide on your own to put the employee on light duty “for her own safety.” That’s not your decision to make. Don’t assume that the employee is not coming back to work and don’t ask insulting questions or make insulting comments in that regard. Assume the employee is returning to work unless and until she tells you otherwise. Do not eliminate the employee’s job while she is on leave. While it is theoretically possible to do this without liability, it doesn’t look good, and you had better have a damned good business reason. And don’t give extra time off out of the kindness of your heart. Doing so could actually open you up to a discrimination claim by male employees (however, if the employee is rendered disabled by childbirth, a reasonable accommodation could include more time off).

If you have an employee who is pregnant and you are freaking out, or you just have some questions on your rights and obligations as an employer, give me a call at 617.338.7000.

By Adam P. Whitney

Say what? When I advise employers on termination issues, I am most comfortable approving a termination when the employee has committed serious misconduct, such as stealing from the company. However, even though Massachusetts is an at-will state, and employers usually are on safe grounds to fire an employee who has stolen from the company, there are exceptions.

Take the recent case brought by the EEOC against Walgreens. Walgreens fired a cashier who opened and ate a $1.39 bag of potato chips because she was suffering from low blood sugar, on account of her diabetes. The case was brought under the Americans with Disabilities Act. Walgreens apparently considered the employee’s actions to be stealing from the company. It is not reported whether there was an investigation prior to the termination. Some reports suggest that the employee planned to or did pay for the chips after the fact.

I won’t comment on who should win this claim without having more facts. What Walgreens should have done was to conduct an investigation, including especially questioning the employee. Given that she was reportedly an 18-year employee with no disciplinary problems, maybe Walgreens should have given her the benefit of the doubt. If she did plan to pay, then allowing her to grab the chips and eating them (and pay for them later) would likely be considered a reasonable accommodation.

In a written statement, the EEOC wrote that “[a]ccommodating [a] disability does not have to be expensive, but it may require an employer to be flexible and open-minded.” That is good advice, when you have an employee who may be considered disabled (which is now very broadly defined), you should always have reasonable accommodations in the back of your mind.

Another situation where you could be held liable for firing an employee for stealing is the case of disparate treatment. If, for example, you do not fire white employees who are caught stealing, but do fire a black employee who has committed the same offense, you could be held liable for racial discrimination. This was the theory that a plaintiff used in Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122 (1997).

Although the employee lost (after what must have been an expensive legal battle all the way to the highest court in Massachusetts) on factual grounds, the legal theory was sound. Employers must be careful to be consistent with their policies, especially in matters of discipline. Of course, this advice is contradictory to the lesson in the Walgreen’s case. As you will read elsewhere in my blog, sometimes disabled employees have to be treated differently. This fits in nicely with my theme – sometimes you’re damned if you do; damned if you don’t.

The takeaway here is that, maybe, you can never be sure that a termination will not lead to an expensive lawsuit. If you cannot fire an employee after you have determined that they were stealing with the company, when can you fire them? I’m not trying to be alarmist. The vast majority of employees who have allegedly stolen from the company can be safely fired. But, as you can see, that’s not always the case. If you do have any questions on whether you can terminate, and how to do it, call me at 617.338.7000.

By Adam P. Whitney, Esq.

If we are being honest we must admit that many of us will eventually get “too old” to do our jobs. This won’t happen to everyone. I have had cases against lawyers in their 90’s who were quite capable. I imagine that Jack LaLanne would have been a fine lifeguard or firefighter even in his 80’s. But most of us could not do those jobs in our 80’s.

Don’t take this post the wrong way; I’m strongly against age discrimination. Although I usually work for employers, I’ve successfully represented older workers who have been real victims of age discrimination. It’s ugly. And the resulting emotional and economic harm to an older worker can be devastating. While racial discrimination is often subtle and covert, age discrimination can be blatant and overt.

This post is aimed at the very real situation of a good employer having an elderly worker who can no longer perform all of the job duties. In this economy with people unable to retire, and because baby boomers are aging, this is a situation that frequently repeats itself. Take this hypothetical “damned if you do; damned if you don’t” situation, which is a mixture of real cases I’ve worked on. Say an employer has a much older worker; elderly, in fact. Far from wanting to discriminate, the company feels great affection for the employee, and has kept him much longer than his performance warrants. Let’s say that the public’s or the client’s safety depends on the employee performing his job duties.

What is the employer to do? By letting the employee slide for years, the employer is in a weak position because it has no record of poor performance. If the employer fires the employee, it exposes itself to an age discrimination claim. If the employer does not fire the employee, clients may be dissatisfied, or someone could be injured. Damned if you do; damned if you don’t. There may also be physical issues that make the employee qualified as disabled under state and federal law, requiring that you provide reasonable accommodations before termination.

There’s no magic bullet to this situation, but if it is a safety issue, you have to err on the side of safety. But it is clear that employers must rely on objective criteria. Well-drafted and honest job descriptions, which are enforced for all employees equally, are your first line of defense. Performance evaluations are your second line of defense. If you routinely evaluate, or even test, all of your employees in an equal, objective, unbiased fashion, and record the evaluations, you will be in a better position (You have to be careful that the evaluations or tests themselves are not biased, which could lead to liability). Also, you should have objective and equal responses to the evaluations/testing. You cannot let some employees slide, because you have then set a precedent that will allow an employee to show bias if you enforce your standards against only some of your employees. Document everything when it happens. Employment lawyers have a saying, “if it’s not in writing, it didn’t happen.”

This will cost you time and money, I get that. But don’t look at it as a waste of time. In addition to helping you avoid liability, won’t it also help you to serve your customers? Won’t it reinforce to your workers that the job description is important and that you take it seriously? Won’t it help you to revise your job descriptions if they are not accurate? Won’t you discover where you need more training? Won’t it help you get valuable feedback from your employees? Won’t you weed out underperforming workers and strengthen your business? Only you can answer these questions, but I’d be surprised if you said “no” to all of them. Maybe this isn’t feasible for every company and every position, but if you put your mind to it, you should be able to come up with some objective ways to evaluate employees.

The other advice here is to be honest with your employees. Of course, don’t say “you’re too old” for the job. Don’t suggest that the employee retire. I said honest, not suicidal. In fact, age really isn’t the issue, in spite of what I wrote above. The issue is the individual’s performance. Some people can suffer early onset dementia at age 60. Some people have their wits about them in their 90’s.

Make it about their performance. Don’t try to soften the blow and tell the employee that you’re eliminating the position when you are not. Don’t tell employees that you are moving in a new direction, or seeking some “new blood,” which is code for hiring younger workers. Just be factual and rely on performance issues. It will still hurt the employee, and they may not want to accept that they cannot perform. But deep down, they will know that you are right. I think it is easier to accept that we all get older and lose some of our abilities than to accept that your employer rejected you just because you are older. If you make an employee feel the latter, you may well buy yourself an expensive lawsuit.

If you have any questions on how to deal with an underperforming worker, call me at 617.338.7000.

By Adam P. Whitney

They say that the cover up is worse than the crime. It’s equally as true that retaliation is worse than the original alleged discrimination. The City of Cambridge, Massachusetts learned this lesson the hard way, according to a recent reported decision, Monteiro v. City of Cambridge, Mass. Appeals Court, 10-P-1240 (August 15, 2011). How hard was the lesson? The total award that was affirmed by the Appeals Court was roughly $6.7 million. By some estimates, that City’s total exposure will be $10 million when additional interest and attorneys’ fees and the City’s own attorneys’ fees are added.

In 2011, virtually every employer knows and appreciates that discrimination based on race, national origin, etc. is prohibited and will subject the company to suit and damages. I have never met a manager or owner of a company who thinks that such discrimination is okay. It is obvious to all fair-minded people that such discrimination is wrong and has no place in our society.

What is less obvious to employers is that retaliation claims are at least as great a concern as discrimination cases, even where no discrimination has actually taken place. You read that right; an employer can be liable for significant damages for retaliation of a complaint, even when the original complaint itself could not be proven. Another surprising thing to employers is that an employee could recover for retaliation even if they did something else wrong prior to their termination.

You may now be scratching your head and asking, how can this be? Let’s back up a bit. Employees of employer’s of six or more employees have a right to make both internal and external (to the MCAD or EEOC) complaints about perceived discrimination. By law, employers must take those complaints seriously and they cannot retaliate against the employee for making the complaint. So long as the employee has a good faith basis for the complaint, which is a low standard, the complaint is protected activity. The complaint does not need to be ultimately meritorious. This makes sense because, in fact, most discrimination cases result in a finding of no liability. The employee still has every right to make a good faith complaint and cannot be punished for doing so.

In the Monteiro case, the jury never determined that the City engaged in prohibited discrimination, but it did find that there was retaliation that led to Ms. Monteiro’s termination. A complete description of the trial is not readily available, but based on one news report the City alleged that Monteiro falsified timesheets. Surely, if true, that would give the City a right to fire Monteiro, right?

Wrong. Monteiro’s attorney presented evidence where other employees (who did not file a complaint) committed comparatively equal wrongful acts and were not punished or terminated. This together with other evidence allowed the jury to determine whether the adverse employment actions were the result of Monteiro’s alleged wrongful acts or the result of prohibited retaliation. The jury determined the latter.

The takeaway should be obvious. You want to avoid any actions or an atmosphere that could lead to discrimination complaints in the first place, but if you do get complaints, take them very seriously. It’s important to tell your managers and maybe even co-workers not to take any adverse employment action until you consult with counsel. You may need to err on the side of giving a poorly performing employee more breaks because they filed a discrimination complaint, even if bogus. Do employees abuse the complaint procedure to avoid an expected termination? Sure, some do. But get counsel involved and tread cautiously when you have any discrimination complaints. If you have any questions about how to respond to discrimination complaints, call me at 617.338.7000.

By: Adam P. Whitney

Change in the law alert! Under a new Massachusetts statutory scheme, you can obtain some information, but if you do it the wrong way or ask for the wrong information, you can buy your company a lawsuit and potentially a judgment of significant damages.

Here’s the skinny. You can’t ask candidates to fill out an application asking for any information about convictions, arrests, imprisonment, etc. You’d better check that application you created 5 years ago, or even 5 months ago, as some parts of the law just went into effect in the last few months.

The new law isn’t all bad for employers. In fact, it is now easier to obtain CORI information. And employers can even be protected from certain liability if they rely on the information and it is either (i) not accurate (protection from candidate who were not hired), or (ii) third parties (protection from negligent hiring cases).

Once you do obtain the information, which you can get with a release from the candidate after checking their identification, you can only disseminate it on a need to know basis. And if you decide not to hire a candidate based on the CORI information, you must tell the candidate this and provide a copy of the CORI documents. You can only keep the documents yourself for seven years.

You can also ask about certain information at the interview, but you must be very precise and careful. You cannot ask about arrests, detentions or dispositions for which there was no conviction (e.g., continued without a finding). You cannot ask about convictions of certain misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray (whatever that is), or disturbance of the peace. You cannot ask about a conviction of a misdemeanor where the conviction or incarceration occurred more than five years prior, with some exceptions. Other than all that, have at it.

You also must be careful to not exclude a protected class of people by not hiring anyone who has a criminal record. The EEOC is investigating whether to promulgate rules regarding criminal background checks, and there have been some cases where the EEOC has sued employers based on such background checks, because they can be discriminatory in their effect.

As always, the above is not legal advice. There are details and exceptions that are not covered here. If you have any questions about this issue, call me at 617.338.7000.

By Adam P. Whitney

$363,570. That’s the cost to one Massachusetts employer for not participating in the MCAD hearing against it, and being found liable for discrimination based on gender and age. The full decision is set forth in the attached case report from the Massachusetts Commission Against Discrimination.

MCAD v. BG New England

The employee alleged that the company hired a less qualified, 30-year old male instead of her. She was 48 at the time. The employee suffered emotional distress because the company did not value her as an employee, even though she had worked for the employer’s predecessor, and had a long history at the job site and in the industry.

We don’t know the employer’s defense, because the employer took the position that, because it filed for bankruptcy, the automatic stay required the MCAD to postpone its procedures. The MCAD did not agree with that contention, and adjudicated the case without the employer’s involvement.

The MCAD awarded the employee lost wages of $167,380 and emotional distress damages of $75,000. Interest at 12% per annum adds about 50% to the judgment, for a total damages award of about $363,570 by my calculations. The MCAD issued the award against the respondent employer, as well as its successors.

Whether the employee will ultimately collect on the judgment remains to be seen. But the lesson for employers is clear. Ignore the MCAD (or EEOC) at your peril. There are many reported cases of employers ignoring an MCAD complaint, which they have only 21 days to which to respond, and being defaulted. The MCAD will then only hear one side of the story, the employee’s side, and act accordingly.

If you get a complaint, letter or demand from the MCAD, call me at 617.338.7000 to discuss your immediate obligations.

By Adam P. Whitney

Failure to meet your obligations could cost your company dearly. How dearly? Is $1 million dearly enough for you? That’s what I estimate it will cost one Massachusetts company, in the recent case described below.

The Federal Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which augments the Veteran’s Reemployment Rights Act (“VRR”), provides for broad protections to military and reserve personnel with respect to civilian job rights and benefits. The entire scope of protections is beyond the scope of this article, which merely scratches the surface of the statutory considerations.

One basic protection is that an employee called to active duty cannot lose their job. In general, an employee may be eligible for reemployment rights even if absent from work for military duty for up to five years, with some exceptions. The statutes also require employers to make reasonable accommodations to disabled veterans, including up to two years time off for convalescence. USERRA provides that the returning employee must be provided the same status, pay and seniority he would have achieved had he not been absent for military service (the so-called “escalator” requirement). USERRA also prohibits discrimination against employees based on military service. Massachusetts anti-discrimination statute, Chapter 151B, also provides that it is unlawful for an employer to deny employment, reemployment, retention, promotion or any benefit of employment to any employee who is a member of or applies to the military or national guard. Violations of these statutes can result in significant damages, as will be seen from the attached case report.
Fryer v. A.S.A.P.

The attached case report, Fryer v. A.S.A.P. Fire and Safety Corp., provides a cautionary tale for employers. The employer had its rear end handed to it at trial and in post-trial motions. The best I can calculate, the total awarded to the plaintiff former employee, including interest and an award of attorneys’ fees, amounted to somewhere north of $800,000, with interest and attorneys fees continuing to accrue while the matter is on appeal (unless the employer wins the appeal, which I doubt will happen).

Fryer was employed at ASAP working on sprinkler systems and the sales and service of systems. He received a modest base pay plus commissions on sales, a company vehicle and other benefits. He loved his job and was very good at it.

In 2007, out of a sense of duty as well as for certain benefits, Fryer reenlisted in the Massachusetts National Guard. His expectation was that it would involve weekends, but would not interfere with his employment. However, he was unexpectedly deployed to Iraq.

Inexplicably, according to the Court’s findings, ASAP then slowed or withheld payments of commissions owed to Fryer. Fryer expected that ASAP would pay the overdue commissions to his wife, who remained home with the children, but ASAP failed to do so (this resulted in a small part of the award being tripled, as it was a violation of the Massachusetts Wage Act). Fryer expected to return to ASAP, and left his tools there.

Fryer kept in touch with ASAP while on active duty in Iraq. In 2008, he arrived home “positive, upbeat and very excited to be back.” Fryer promptly went to ASAP and stated that he was available to start work almost immediately. However, ASAP told him that there were no open positions, even though it had purchased another sprinkler company. ASAP had hired another employee in Fryer’s stead, but that is not a defense under USERRA. The regulations provide a right to reinstatement, even if reemployment might require the termination of a replacement employee.

After contacting government officials, Fryer sent ASAP a certified letter formally requesting reinstatement. ASAP eventually gave in and instructed Fryer to report to work in 2008. The supervisor told Fryer that ASAP had to give him a job, implying that it was only doing it because it had to do so. The job was not an “escalator” position, but a lesser position as a sprinkler’s helper. The position did not offer a reasonable opportunity to make commissioned sales, and did not offer a company vehicle or gas card.

A few months later, ASAP terminated Fryer, purportedly for being late for work twice and calling in sick three times, all within a thirty day period. Fryer was shocked, and later suffered depression and other emotional difficulties. Fryer sued, and proved at trial that these reasons were a pretext, “with the real reason being plaintiff’s military service and his complaints about not having the benefits and responsibilities of his preservice position.” The facts for the pretext are set forth in the decision.

The jury hammered ASAP and its owners personally, finding them liable for discrimination. The jury awarded $289,000 in emotional distress damages, back pay and front pay of nearly $150,000, and various smaller amounts that were trebled. Attorneys’ fees and interest were later added by the Court, nearly $200,000 in attorney’s fees and $100,000 in total interest. Based on my calculations, if Fryer prevails on appeal, the total calculations could be over $900,000 if more attorneys’ fees and interest are added. That’s before considering ASAP’s own attorneys’ fees and costs, which one assumes has to be well over $100,000, making the total exposure over $1 million.

Don’t make a $1 million mistake for your company if you could avoid it for small dollars with a consultation with a knowledgeable employment lawyer. While this case presents an extreme example, even well-intended mistakes could subject your company to significant exposure.

As stated above, the protections under these statutes are complex and detailed. The above is merely a small amount of general information. If your company has questions on how to make sure it complies with these statutes, give me a call at 617.338.7000.

By Adam P. Whitney