Category Archives: employment law

Will the Supreme Court weaken an important civil rights law?

Posted on November 14, 2019 by Jon Rehm

Overshadowed by the presidential impeachment hearings that started on Wednesday, the United States Supreme Court heard oral arguments in a case could weaken an important civil rights and employment law.

Comcast v. National Association of African American-Owned Media and Entertainment Studios and Networks involves a case where Byron Allen alleges Comcast refused to carry channels produced by his company due in part to his status as an African-American. He alleges Comcast ran lesser-known channels from white-owned companies.

Allen brought his case under 42 USC 1981, a law passed after the Civil War during the Reconstruction Era, that prohibits racial discrimination in contracting. This law applies to employment discrimination. Comcast is arguing that the Allen must show race was a “but for” factor in their decision not to run his channels.

But for causation is considered a harder standard than either motivating factor or contributing factor causation. Requiring but for causation in 1981 cases would weaken the effect of the law and make it easier for employers to discriminate against African-Americans.

African-Americans are still covered under Title VII which only requires proving race is a motivating factor for employment discrimination. But Section 1981 has some important advantages over Title VII.

First of all Section 1981 does not require that employees file a charge of discrimination with a civil rights agency or exhaust administrative remedies. I believe this requirement amounts to private sovereign immunity for employers. As a practical matter, exhaustion of remedies requirement can serve to delay the resolution of cases and make it harder for individuals to pursue justice.

Secondly Section 1981 has a four year statute of limitations. Statute of limitations are much shorter and unclear under Title VII and state civil rights laws. Claimants also have 90 days to file a lawsuit after being issued a right to sue letter. Claimants are often left scrambling trying to find lawyers to file a timely complaint. When you have a clear four year statute of limitations it’s easier to bring a claim.

But if Section 1981 is weakened by the Supreme Court, the procedural advantages of bringing such a claim will be cancelled out by the weaker substantive law.

Comcast is the second major employment law case argued this term. In October there was some indication that the court may expand Title VII to at least cover sexual orientation. I had a more pessimistic prediction before oral argument. My feeling is that the court seems inclined to expand the scope of civil rights protections while at the same time weakening the protections in those laws.

Blog roundup: Drug testing for unemployment benefits is law by Facebook meme

Posted on October 24, 2019 by Jon Rehm

Some of my blogging is based off reacting to what other bloggers write. I read two posts from other midwestern bloggers that merit some quick discussion.

Wisconsin Unemployment Blog — The United States Department of Labor published a new rule allowing states to drug test unemployment applicants. This is dumb for a lot of reasons.

Drug testing as a condition receiving a government benefits is essentially making law based on the memes shared by your aunt or uncle on Facebook. When some states tried drug testing for government benefits, the amount of positive results was minimal and the cost of drug testing far exceeded the savings in denying benefits.

Secondly, this policy assumes unemployment is welfare or an unearned benefit. This is false, employers have to pay unemployment taxes. So employees can only receive benefits if employers have paid benefits on their behalf.

Finally conditioning receipt of unemployment benefits on conduct not connected with employment, undercuts the whole idea of unemployment insurance. I’ve written earlier that I believe that unemployment insurance is one of the strongest and most overlooked factors pushing against the influence of the employment at-will doctrine. Drug testing unemployment applicants weakens those protections.

Ohio Employer’s Blog — For the sake of my employment law practice, maybe I should emulate Bo Pelini and move from Nebraska to Ohio. Ohio has no exhaustion of remedies requirements and a six-year statute of limitations on discrimination claims. Another Jon, Jon Hyman, thinks this is terrible and is glad Ohio is considering legislation to shorten statute of limitations on employment law claims in Ohio and require administrative filings in discrimination cases.

In my view, exhaustion of remedies amounts to private sovereign immunity for employers. Forcing employees to file administrative charges can also lead to severe delays in investigating claims if civil rights agencies are underfunded. While it is true that civil rights agencies can helps settle or conciliate claims, my experience is that it helps to do some investigation before conciliating or settling a claim. If claims aren’t being investigated conciliation is often futile. Secondly conciliation often takes considerable staff time that could be better used in investigating cases

Will the employment at-will doctrine sink LGBTQ rights under Title VII?

Posted on October 7, 2019 by Jon Rehm

The Supreme Court will hear arguments Tueday about whether Title VII of the Civil Rights Act of 1964 expressly prohibits discrimination based on sexual orientation and gender identity. What you probably won’t hear about is the importance of the employment at-will doctrine in how the case is decided

The case for including sexual orientation within Title VII is based on the“sex plus” theory of discrimination which prohibits gender stereotyping. More broadly the equal protection arguments underlying the 2015 decision legalizing same-sex marriage would also support the inclusion of sexual orientation and gender identity within federal civil rights law.

In a brief the United States Department of Justice (DOJ) argued against expanding TItle VII protections to sexual orientation and gender identity based on a narrow reading of Title VII. Though the DOJ brief doesn’t mention the concept or doctrine of employment at-will expressly, its influence is felt strongly.

Employment at-will is judge-created or, according to an authoritative essay written by attorney Ronald B. Standler, a law professor-created doctrine created in the late 19^th century. Employment at-will is a doctrine that holds an employer is free to fire an employee without cause at any time, for any reason without notice. On the flip side an employee is free to quit at any time. (Of course, employment at-will doesn’t stop employers from whining about employee ghosting. Employers also seek to enforce non-compete agreements against employees who quit)

One consequence of employment at-will, as pointed out on this blog, is that courts will narrowly interpret any exceptions to employment at-will doctrine.

Civil rights laws are exceptions to employment at-will. But opponents of expanding Title VII expressly to sexual orientation and gender identity are arguing to narrowly construe Title VII. The employment defense bar makes these types of arguments, often successfully, on a routine basis.

In a way the argument over whether to include sexual orientation and gender identity within Title VII is both groundbreaking and routine. I scratch my head when strong advocates of employment at-will get apoplectic about the DOJ’s brief narrowly interpreting Title VII. All the DOJ is doing is narrowly interpreting an exception to employment at-will doctrine.

I also don’t understand the argument that laws prohibiting LGBTQ discrimination are economic development tools. I read an interesting article that could explain this idea. The article was a critical exploration of the philosophy of Supreme Court Justice Clarence Thomas. Thomas, the second African-American Supreme Court justice has been critical of policies such as affirmative action. The article pointed out, somewhat sympathetically, that Thomas sees affirmative action as a matter of aesthetics among elites. In other words, the elite gets to chose what the elite looks like without having their power challenged. Inclusion is a form of marketing.

I think the idea of elite aesthetics explains how the professional-managerial class and their defenders can support LGBT rights in the workplace and employment at-will. Even if sexual orientation and gender identity are included within Title VII, those cases will still be difficult to win. Employers will still have what amounts to private sovereign immunity through exhaustion of remedies requirements. The National Labor Relations Board will still be making it harder for employees to form unions and not be subject to employment at-will.

But not all management-types are so willing to let their socially liberal instincts override their support of employer power in the workplace to create more exceptions to employment at-will. There are also many in the business community who don’t share socially liberal sentiments. I suspect this side may prevail in the argument over whether sexual orientation and gender identity are covered by Title VII.

Would it be logically inconsistent to allow same sex marriage but allow discrimination based on sexual orientation? Yes, but the importance of the employment at-will doctrine would at-least give that seeming inconsistency some logical explanation.

Does employment at-will deter whistleblowers?

Posted on September 30, 2019 by Jon Rehm

Photo credit to Axios

A whistleblower, reportedly a CIA officer assigned to the White House, set off a political and constitutional firestorm by reporting allegations that the President conditioned delivering military aid to the Ukraine on that country investigating one of his political opponents.

Did on-the-job protections for federal workers make the whistleblower more likely to come forward?

It’s hard to know why the whistleblower came forward. But assuming the whistleblower had civil service protections, an employee of the federal government has more job security than your typical employee.

Employees of the federal government can only be fired for just cause. A typical employee is an at-will employee which means that they can be fired at any time for any reasons. While whistleblower laws protect all employees, the fact that federal employees have a just cause standard for termination gives them an extra layer of protection from getting fired than at-will employees.

State employees in Nebraska have similar protections to federal employees. I think it is reasonable to argue that those protections government employees somewhat more likely to report misconduct as they have less reasons to fear for their jobs than a typical at-will employee.

That’s not to say that whistleblowers just need to fear for their jobs. President Trump mused about killing whistleblowers. The Obama administation routinely prosecuted whistleblowers. Less prominent whistleblowers are usually subject to all sorts of petty harassment on the job. I’ve written before about how government employers seem to excel at making employees miserable if they want to get rid of an employee.

But a typical government whistleblower has less immediate fear about how they are going to earn wages than a typical private sector whistleblower.

A union contract gives private sector workers similar on the job protections to government employees. Many government employees are also covered by union contracts which helps them to further to protect their rights on the job.

Some argue that it’s too hard to fire public employees, but whistleblowing serves an important function in a free society. How many fewer whistleblowers would there be if government employees were just at-will employees who were easy to fire?

I have written a lot about employment at-will lately because the importance of employment at-will explains so much about employment law. I believe the question of whether Title VII expressly protects workers on the basis of sexual orientation and gender identity could turn on the value placed on the employment at-will doctrine regardless of whether that influence is acknowledged.

Employment at-will establishes the legal relationship between employee and employer. The employee-employer relationship can also have an impact beyond the immediate boundaries of the workplace. I think it’s worth exploring the relationship between whistleblowing and the fact that most government employees are not at-will employees.

What The Office gets wrong and right about workers compensation

Posted on September 23, 2019 by Jon Rehm

“What do you want to watch?”

“I don’t know.”

“How about The Office?”

“Okay.”

I had this conversation with my wife a few weeks ago after we put our son to bed. That night we ended up watching Episode 2 of Season Six. In that episode warehouse manager, Daryl, makes a workers’ comp. claim for a knee injury. The claim leads to Dwight to suspect fraud.

Of course, I thought the episode got a quite a bit wrong about workers’ compensation, but the episode got some things right as well.

Workers’ compensation as a substitute for health insurance — Daryl claims in the episode that he wouldn’t have to claim workers’ compensation if the United States had “universal health care.” This is a misconception for two reasons.

One study showed the expansion of health insurance under the Affordable Care Act means more claims are pushed onto workers’ compensation because health insurers don’t want to pay benefits for medical treatment that should be paid for by workers’ compensation.

Secondly, Canada has universal single-payer health insurance. Canada still has workers’ compensation laws. Work injuries also lead to income loss, so workers’ compensation doesn’t just pay medical bills, but it also provides payment for loss of income and permanent disability.

So, to quote Oscar Martinez, actually even if an employee has health insurance, they could be claiming workers’ compensation for both income loss reasons and because their health insurance is pushing them to claim workers’ compensation.

Presumption of fraud — Dwight assumes that Daryl’s claim was fraudulent. At the end of the episode it is strongly implied that Daryl lied about how he hurt his knee. This plot development lines up with the presumption that workers’ compensation claims are almost per se fraudulent. This ignores the fact that most serious workers’ compensation fraud is committed by employers and medical providers. (For the record misuse of company property isn’t a per se defense to denial of workers’ compensation benefits.)

What “The Office” Gets right about workers’ compensation

The stigma of workers’ compensation

The Office episode accurately portrays the skeptical attitude that many employers have about workers compensation. Dwight and Toby’s spying on Daryl is not out of the ordinary for employers. Daryl’s comment that he wouldn’t be filing a claim if he had better health insurance also indicates an attitude on his part that he is doing something wrong by filing a workers’ compensation claim.

Surveillance

The episode also includes Dwight and Toby spying on Daryl. Surveillance of injured workers is fairly common. I have also seen my share of managers engaging in the type of freelance surveillance of the type engaged in by Toby and Dwight.

Employment law issues and workers’ compensation

The episode also portrays the fundamental truth about Human Resources – they are there to protect the company. Even if HR comes off as being on the employee side, as shown by Toby’s fist bump to Daryl when Daryl turns in his injury claim, Toby is willing to go along with Dwight’s “investigation” of Daryl’s injury. Further the normally mild-mannered Toby even goes so far to yell an insult at Daryl’s sister when he mistakenly thinks she is Daryl committing workers’ compensation fraud.

The story line ends with Dwight filing a grievance against Daryl for misusing company property and Daryl filing a grievance against Dwight and Toby for spying on him. The episode is accurate that work injuries often create employment law issues related to retaliation. While the Daryl claims workers’ comp. plot line ends with the episode, workers’ compensation retaliation can have long-lasting and serious effects.

The scene where Daryl confronts Toby and Dwight about the spying also contains an undercurrent of racial tension between Daryl, who is black, and Toby and Dwight – who are white. Workers’ compensation retaliation can also be mixed in with other forms of discrimination such as racial discrimination.

Can I use the decision in my unemployment appeal in my wrongful termination case?

Posted on August 5, 2019 by Jon Rehm

Can I use the decision in my unemployment appeal in my wrongful termination case?

Attorney Nate Ring answered this question for his state on his blog, The Nevada Labor Law Blog.

In Nevada, the answer is a firm no by statute. Nebraska law is a bit more permissive about the use of unemployment decisions in other cases. But in my experience, judges will rarely admit the decisions into evidence or give the decision much weight for the purpose of summary judgment.

I will explain why Nebraska judges usually don’t rely on unemployment decision in other cases. But even if an unemployment decision can’t be used in a wrongful termination case, an unemployment appeal can be useful in investigating a wrongful termination case.

Nebraska judges tend not to give much weight to unemployment decisions in related cases for reasons of procedure and substance. Like Nate Ring wrote, unemployment appeals have rules of evidence that allow in more evidence but allow for far less investigation than in civil court. The differences in evidentiary and procedural rules can lead to an unemployment judge deciding a case about the same termination on a different set of facts.

Secondly, in an unemployment appeal the employer has the burden of proof to show the employee committed misconduct in connection with their employment. In a wrongful termination case, the employee has the burden to show their termination was motivated by an unlawful reason. In short, it is easier for an employee to win an unemployment appeal. As a result, judges are very reluctant to let an unemployment decision into the records.

But even though an employee generally can’t use an unemployment appeal decision in a wrongful termination case, an unemployment appeal can be helpful in prosecuting a wrongful termination case.

Unemployment appeals are useful in investigating the facts of a termination, For most employees, non-union and private sector employees, it is difficult to obtain an employment file. In a Nebraska unemployment appeal, an employee can subpoena records relevant to their termination.

The employee, or their attorney, also has the opportunity to question employer witnesses who likely would have been involved in the decision to terminate the employee. In Nebraska this questioning is done under oath.

To sum up, an unemployment hearing can be a way for employee to find out additional facts about their termination and get admissions and impeachment evidence in a wrongful termination case..

Sometimes an unemployment appeal can be a chance for an employer to show they can fully justify their termination. If an employer can provide credible documentation of repeated misconduct or performance problems, an employer is likely to be able to defeat an unemployment claim.

This documentation of misconduct or performance problems is often part of so-called progressive discipline. While progressive discipline isn’t required to fire an employee and failure to use progressive discipline generally isn’t evidence of discrimination, progressive discipline is often necessary in an unemployment hearing. If employers don’t follow progressive discipline, they risk having their unemployment taxes increased.

I’ve written previously about the vast powers that employers have to fire employees in the United States. Employers can fire employees at any time for reason. This is known as ‘at-will employment.” The law around unemployment insurance can serve to modify employment at-will by giving a tax penalty to employers who don’t follow progressive discipline in firing employees. So while unemloyment insurnace is thought of a social safety net program, it effectively functions as a civil rights law as it discourages employers from firing employees without some due process.

Blockchain: Another tool for management to use against workers?

Posted on July 1, 2019 by Jon Rehm

Just like staying at a Holiday Inn Express made you smarter in the mid-to-late 2000s, writing a post about “blockchain” will make any blogger sound smarter in the late 2010s.

The latest entry in the blockchain derby, was “Is blockchain the next frontier in preventing sexual harassment?” by Jon Hyman. The post does a good job of explaining blockchain as a technology that creates secure, verified and unchangeable records. Hyman also writes how blockchain could be used for reporting of sexual harassment – and presumably other forms of unlawful discrimination. (The clear explanation of blockchain makes the post worth reading.)

The innovation or “disruption” described by Hyman is that there is an blockchain program that allows employees to bundle reports of harassment made against the same harasser.

So some Silicon Valley genius, or poorly paid coder, developed a program that mimics protected concerted activity. There might be an intellectual property issue here as this concept was actually invented in the 19^th century – it’s called a labor union.

Meanwhile outside of the gilded and dreamy world of HR Tech, the rights of employees to from unions and engage in protected concerted activity are being curtailed.

My problem with the use of blockchain software run by a third-party on behalf of management are numerous. First it would impose hurdles in the discovery process. If similar complaints of harassment or discrimination are stored by a third-party, HR may not know to disclose them in discovery. I suspect this may not be entirely accidental. Harassment and discrimination claims usually require an employer have knowledge of the discrimination and the opportunity to take remedial action. Outsourcing reporting and creating an extra step in reporting discrimination gives employers additional legal protections.

Also, if similar complaints about harassment or discrimination were stored on a blockchain run by a third-party vendor, it might require subpoenaing those records. Besides potential jurisdictional issues over subpoenas, tech companies are famously unwilling to cooperate with legal investigations. Apple refused the request of the FBI to unlock the I-phone of a mass shooter in San Bernadino, California. If tech companies will stonewall the FBI, I am sure they would stonewall a plaintiff’s lawyer in a civil case.

In contrast, a call to a union business agent or Local leader will often yield information about comparators and company practices in a discrimination case. Unions aren’t perfect, but neither is HR or the latest technology. Innovations in information technology can empower employees. One example is an app created by the United States Department of Labor designed to combat wage theft. But blockchain technology controlled by management is just another tool in maintaining the dominance of capital over labor in the workplace.

Do exhaustion of remedies requirements amount to private sovereign immunity for employers?

Posted on June 13, 2019 by Jon Rehm

Experts in employment law sympathetic to management and workers shrugged off the Supreme Court’s decision last week that made exhaustion of remedies a procedural rather than jurisdictional requirement for job discrimination claims brought under federal law.

But what employment law experts consider normal, would likely raise questions for non-experts who understood arcane employment law concepts. Exhaustion of administrative remedies is one of those arcane concepts and it is an idea that illustrates the over-privileged, in my view, position employers hold in the American legal system in relation to their employees.

Here is an example of the benefit employers get from the requirement to exhaust administrative remedies.

Let’s say you lose your job, so you lose affordable health insurance. Let’s say you need some emergency medical treatment and get stuck with a $10,000 bill you can’t pay.

Your local health care monopoly doesn’t need to get permission to sue you to collect their medical bill. They can just sue you.

But let’s say, you want to sue your former employer firing you because of your age, sex, religion, etc. Under federal law and many state laws you need to first file a charge with a civil rights agency and get their permission to sue your employer. (Nebraska actually doesn’t have those requirements. There are some exceptions under federal law as well.) In legal parlance, this is called exhaustion of administrative remedies.

If you sue your employer without exhausting administrative remedies, your employer can have your case dismissed even if you would win your case on the merits. The recent Supreme Court case just holds that employers must bring that up in the beginning of the lawsuit otherwise they lose that defense.

But if the local hospital sues you for an emergency room bill you can’t pay your bill, you can’t argue that they failed to exhaust administrative remedies because they didn’t get permission from a third party to sue you.

Does anyone else get this sweetheart deal in litigation? Yes, the state, local and federal government. This is called sovereign immunity. Sovereign immunity is a doctrine from English common law that holds the king can do no wrong.

But wait, didn’t Americans fight a war in the 18th century to get rid of monarchs? Isnt the concept of sovereign immunity literally anti-American? One early Supreme Court decision would agree. But soon afterward American officials decided it was good to be king and enshrined this foreign concept into American law.

I think of exhaustion of remedies as a kind of private sovereign immunity for employers. In comparison to the rest of the world, American employers are Louis XIV-style absolute monarchs. The international Organization for Economic Cooperation and Development, OECD, has an index comparing the ease of firing employees in developed countries. Per the OECD, the United States has the least amount of legal protections for employees in the world and is the easiest country in the world for employers to fire employees. A requirement to ask for permission to pursue a wrongful termination case is just another way to protect employers.

I concede that civil rights agencies can be useful and serve a greater purpose than just deciding discrimination cases. But civil rights agencies can lose effectiveness if they are underfunded. In general, administrative agencies are also vulnerable to influence by the industries they regulate — so-called regulatory capture. The option for individuals and groups to litigate directly and effectively against their employers is a necessity for workplace rights. Requiring employees to exhaust administrative remedies makes it harder for them to do so.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Category Archives: employment law

Will the Supreme Court weaken an important civil rights law?

Blog roundup: Drug testing for unemployment benefits is law by Facebook meme

Will the employment at-will doctrine sink LGBTQ rights under Title VII?

Does employment at-will deter whistleblowers?

What The Office gets wrong and right about workers compensation

Can I use the decision in my unemployment appeal in my wrongful termination case?

Blockchain: Another tool for management to use against workers?

Do exhaustion of remedies requirements amount to private sovereign immunity for employers?

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