Tag Archives: employment at-will

Does the “managers rule” greenlight retaliation against whistleblowers?

Posted on November 28, 2021 by Jon Rehm

Whistleblowers are supposed to be able to report illegal activity by their employers free from fears of retaliation. But what if complying with laws is part of your job as a manager or human resources professional? In that case the managers rule may apply and your protections as a whistleblower may be severely curtailed or non-existent.

What is the managers rule?

The managers rule is a creation of federal judges. It holds that employees whose job it is to comply with laws, typically managers and those employed in human resources, can’t be whistleblowers. The reasoning behind this rule is that allowing managers to be protected for reporting information that is part of their job would create too much litigation and make it harder to fire these employees.

Does the managers rule apply in Nebraska?

I am not sure, but I wouldn’t bet against the proposition. The 8^th Circuit Court of Appeals, which Nebraska is part of, has applied the managers rule in federal whistleblower cases and in other state whistleblower laws decided under diversity jurisdiction. The 8^th Circuit Court of Appeals recently remanded a whistleblower case under the Nebraska Fair Employment Practices Act to state court to determine whether the managers rule applies under Nebraska law.

However, Nebraska state courts tend to follow the 8^th Circuit in interpreting fair employment laws, so it is very possible the Nebraska Court of Appeals or Nebraska Supreme Court would adopt the managers rule.

How does a whistleblower get around the managers rule?

I think there are two ways. One way is to show by an employee’s actual job duties that they aren’t covered by the rule. A California federal court did this recently in Kailikoke v. Palomar Community College. The Kailikoke court noted the manager rule wasn’t supported by the text of any statute and would exclude many workers from anti-retaliation laws.

Secondly, even if you concede the managers rule applies an employee who steps outside of their typical job duties to report employer misconduct is still protected by whistleblower laws. In Kelley v. Iowa State University, the Southern District of Iowa, found that a Title IX compliance officer had stepped outside of her role in refusing to implement policies ordered by the University. The court also found that she stepped outside of her role because the school undermined her position.

Employment at-will and the managers rule

The Kailikoke court is right holding that the managers rule isn’t supported by statute. But the managers rule is supported by the employment at-will doctrine. The employment at-will doctrine is a judge-made creation that gives employers almost free reign to fire employees. Ronald Standler’s article on the history of the doctrine is a must read.

Of course anti-discrimination and retaliation statutes limit the powers of employers to fire employees. But in order to uphold the employment at-will doctrine, courts create other rules like the managers rule to minimize the impacts of these laws.

Unhappy holidays for voluntold light duty injured workers

Posted on November 9, 2020 by Jon Rehm

Christmas music started playing last week. Another familiar holiday sound started last week — holiday bell ringing by The Salvation Army. But many bell ringers may be injured workers who are being forced to volunteer at a “light duty” assignment.

Nothing under Nebraska law prohibits companies from assigning their injured workers to work for non-profits. In fact, a small industry has cropped up that matches injured workers with non-profits. Of course, that industry and apologists for workers’ compensation insurance industry call this practice a win-win for everyone. I think the benefits of forced volunteer or voluntold work don’t hold up under closer examination. But workers faced with a voluntold assignment face at least two problems:

Two bosses

Injured workers who are voluntold to do volunteer work are paid by their employers. Since the employers are paying them they have to answer to their employers. Workers are also accountable to onsite supervisors for the non-profit. Two bosses leads to communication problems and that often leads to problems for injured workers — who in practical terms are often already on thin ice with many employers for filing a workers’ compensation claim.

Different hazards

When a worker returns to work in a light duty job, there is a good chance that a supervisor has some idea about the employees work restrictions. That’s less likely when dealing with a new employer.

Some so-called light duty jobs aren’t always light. Some injured workers get temporarily assigned to work at Goodwill Stores. However most retail work requires a 50-pound lifting ability along with extended standing. Bell ringing usually requires long-term standing. And while insurance side thought leaders like to use terms like “resilience”, they have cushy indoor jobs. Trying standing outside on a cold December day in Nebraska for eight hours being forced to volunteer. This is never a pleasant prospect and it’s certainly more risky as the COVID pandemic extends into month eight in the United States.

Win-Win or Win-Lose?

The insurance industry touts the well-being benefits of volunteer to work to injured workers. But on closer look these benefits, nebulous as they are, are mostly backed by anecdotal evidence. But even if you take the benefits of corporate volunteering at face value, a lot of those benefits come through so-called VTO or volunteer time off programs. In those programs, companies have employees take time off for community projects or pay employees to volunteer for organizations they care about. That’s a whole other situation from telling an injured worker to go out in the cold and raining bells for the Salvation Army 40 hours a week or they will get fired while they still recovering from an injury.

But while then benefits of voluntold jobs are dubious at best to workers, businesses who voluntold their workers get a nice some nice PR.

Why can’t workers just collect TTD and volunteer on their own?

Why can’t workers just volunteer for an organization they like and collect TTD? Many workers are rightly concerned that employers are surveilling them. But even if a worker isn’t under surveillance, employers and their insurance companies fundamentally like to control their employees — including and especially their injured workers. Employers want to control which doctors you see and what kind of care you get from your doctor through the use of nurse case managers.

But even if an employee manages to get proper medical care for a work injury, some employers aren’t content to let their workers stay home for a few months while they get healed. Employment at-will gives employers all sorts of leverage over their employees. Voluntold programs are just one example of how this power dynamic plays out.

Things work differently when a collective bargaining agreement is in place. Unions sometimes negotiate their own return to work programs. But I’ve seen insurance companies and their vendors ignore these agreements and try to force union members into voluntold jobs.

How is workers’ compensation different for top draft picks?

Posted on October 31, 2019 by Jon Rehm

New Orleans Pelicans forward, Zion Williamson (The Athletic)

It’s hard to imagine an injured highly paid professional athlete as a workers’ compensation claimant. Their wealth shields them for many of the difficulties an injured worker can experience. But their experience as injured workers gives the public insight into the some of the challenges faced by injured workers.

New Orleans Pelicans forward and NBA top draft pick, Zion Wiliamson, injured his right knee in the preseason. Here are few takeaways on the injury and its media coverage from the perspective of a workers’ compensation lawyer.

New employees are more likely to get hurt – Studies show that new employees are more likely to get hurt on the job. In this respect Zion Williamson is similar to many other new employees. Injuries to new employees pose all sorts of issues for injured workers. How do you calculate workers’ compensation benefits? What if you have to miss time from work? Williamson likely doesn’t have those problems for a few reasons.

Average weekly wage – A major issue for new employees is how to calculate the amount of their workers’ compensation benefits. Even if Williamson wasn’t making millions of dollars, this wouldn’t be a problem for him because he has an actual employment contract that states how much he is to be paid.

Leave for the injured new employee – A typical employee at-will employee isn’t required to be granted leave until they have been employed for one year. That assumes the employee is covered by the Family Medical Leave Act. But Williamson is covered by a contract with the Pelicans. He is also covered by a collective bargaining agreement through the NBA Players Association. So unlike the typical new at-will employee hurt on the job, Williamson likely has the time to recover from his work injury without having to worry about losing his job.

Pre-existing injuries and uncertainties over reporting – Williamson injured his right knee playing for Duke in February 2019. At least according to press reports, there is some question about the right knee injury occurred. Nonetheless, I would assume the Pelicans will pick up Williamson’s medical care through workers’ compensation.

But if you aren’t an elite-level NBA power forward and you tell your employer you aren’t sure how you hurt your knee, but you know you hurt it eight months ago, don’t be surprised if workers’ compensation doesn’t cover that injury.

On the off chance the Pelicans deny Williamson’s workers’ compensation, claim based on causation and/or the definition of accident, Williamson probably would have the money to cover his medical treatment. Most other injured workers lack that ability.

As an aside, if it was determined that Williamson’s knee injury was caused by his play at Duke, those injuries would not be covered by workers’ compensation. Eventhough the NCAA recently allowed student-athletes to make money through endorsements, they aren’t employees who are entitled to workers’ compensation.

General ignorance of workers’ compensation – I like basketball but I don’t follow it closely. I didn’t find out about Williamson’s injury until I saw an article in The Onion entitled “Pelicans HR Informs Zion Williamson Knee Surgery Not Covered Until 90 Days Into First Season.”

Employers are required to carry workers’ compensation and employees are covered by workers’ compensation on their first day of work. The Onion is satire but it’s fairly typical of the misunderstanding of workers’ compensation by the media and entertainment industry. California’s Assembly Bill 5 is often described as a bill that provides sick leave and health insurance to gig economy workers. Sick leave and health insurance often aren’t required benefits, but workers’ compensation is a mandatory benefit. AB5 expands workers’ compensation to gig economy workers.

Wall Street Journal columnist Andy Kessler was griping about AB5 in a recent column. Kessler didn’t mention workers’ compensation in his column. Any pundit opining about AB5 who doesn’t understand the fundamentals of employee benefits, should be discounted or ignored.

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.

Pennsylvania court narrowly interprets workers’ comp. retaliation

Posted on September 5, 2019 by Jon Rehm

In a decision that was disappointing but not entirely surprising, a federal court in Pennsylvania held that merely getting hurt at work wasn’t enough to claim wrongful termination in retaliation for filing a workers’ compensation claim. (h/t to Tom Robinson for his post on the case.)

At the core of this decision is assumption about employment at-will that often underlies the interpretation of all sorts of employment laws. Here is why I think the decision was wrong, why I think it was decided the way it was and what that decision means in the bigger picture.

Why I think the Pennsylvania court got it wrong

I think the Pennsylvania federal court made the wrong decision for many reasons. In Kasten v. St. Gobain, the United States Supreme Court held that a question about the location of the time clock constituted a protected activity for the purposes of the Fair Labor Standards Act. In other words, what constitutes a protected activity should be broadly construed.

Federal anti-discrimination law is also less than clear whether “protected status” and “protected activity” are really a different category. Justice Ginsburg made this argument in her dissent in the Nassar case. The reasoning behind this argument is that complaining about retaliation means that either you are member of a protected class or that someone in a protected class is being discriminated against. In the case of a work injury, protections against discrimination should attach when an employee is hurt at work rather than when they formally file. The reasoning supporting this proposition is that if formal filing of workers’ compensation is required, an employer is free to fire an employee who gets hurt but hasn’t filed a claim.

The importance of employment at-will

The rationale against these arguments in the Pennsylvania case was that workers’ compensation retaliation is an exception to employment at-will and the employment at-will exception should be construed narrowly by courts because of the importance of the “at-will employment” doctrine. This is a mainstream position held by most in the employment defense bar. Though employment at-will is rarely cited in federal case law involving employment issues, I believe veneration of employment at will underlies most decisions limiting the application of exceptions to employment at-will.

You can see the force of employment at-will at work in the Department of Justice’s brief arguing against including gender identity within Title VII. The argument for including gender identity and sexual orientation within Title VII is based on the “sex plus” theory in announced in the Price Waterhouse case. The DOJ narrowly construes the “sex plus” theory of discriination to argue that gender identity and sexual orientation aren’t per se covered by Title VII. That argument is supported by reasoning that requires injured workers formally file workers’ compensation claims in order to be protected against discrimination from their employers because of their injury. Both arguments rest on narrowly interpreteting exceptions to employment at-will.

Jursidcition and role of federal courts in workers’ compensation retaliation

Another question is why was this case in federal court in the first place? Workers’ compensation and workers’ compensation retaliation cases are state law cases. But in the Pennsylvania case involved a federal ADA complaint so the court took jurisdiction under so-called pendent or ancillary jurisdiction. Even in a purely state law claim a federal court can take jurisdiction through so-called diversity jurisdiction, if the employee and employer are citizens of different states as is often the case.

Federal law isn’t controlling over state law, but state courts often look to federal courts to interpret employment law. Federal judges have the chance to interpreter state law workers’ compensation retaliation cases in diversity jurisdiction cases In my view, federal district courts serve almost as a parallel appellate level court in Nebraska. So even if this Pennsylvania decision isn’t controlling authority, it will certainly persuade other courts faced with similar issues.

What the case means for injured workers and their lawyers

This case stands for the proposition that injured workers are going to need to actively pursue workers’ compensation claims or risk having their retaliation claims dismissed for not engaging in the protected activity of filing workers’ compensation. This is often challenging because injured workers sometimes wrongly believe that aggravations of old injuries or overuse injuries aren’t covered by workers’ compensation. Employees may also feel that workers’ compensation is dirty or illegitimate and let that stigma discourage them from filing a workers’ compensation claim. Employers may also be discouraging employees from filing workers’ compensation claims through safety programs or by encouraging employees to shift the costs of a work injury on to private health insurance and or private disability insurance.

In short many of the same mental hurdles and practices that can complicate a workers’ compensation claim can also weaken an injured workers’ protections against discrimination.

The Chinese province of Nebraska?

Posted on April 30, 2018 by Jon Rehm

Xi JinRicketts?

The equivalent of an economic drone strike took place a few blocks northeast of our Omaha office.

Roy Jones was an hourly customer engagement employee at the Marriott Reservation Center in Omaha. As reported in The Wall Street Journal and Quartz, he liked a tweet by a Tibetan group congratulating Marriott for listing Tibet as a country.

As a result of liking a the tweet, the Chinese government ordered Marriott to suspend bookings at 300 hotels in China for a week. Mr. Jones was also terminated. Matt Hanson in the Omaha World-Herald reported, Jones was under traiend and over stressed when he liked the offending tweet. Jones had little idea that liking the tweet would be offensive to the Chinese.

Chinese leader Xi Jinping made news recently becoming the Chinese leader since Mao Zedong to rule for life. Back in 2016, I wrote a post pointing out Jinping’s increasingly authoritarian tendencies and his crackdown on employee-rights lawyers in China. I never thought the authoritarian Jinping regime would extend its reach into what writer Matt Stoller sarcastically described on Twitter as the “Chinese province of Nebraska.”

Nebraska’s junior senator, Ben Sasse, has made a pet issues out of the emerging threat of cyber-attacks from foreign powers. I would wonder what he thinks about a foreign power, China, having the power to fire one of his constituents?

Hanson concluded his article by concluding that Jones’ termination wasn’t right. I agree, but employment at-will allows employers broad legal protections when it comes to firing employees. In essence, employers have Jinping-like powers in the workplace. But when a foreign dictatorship has the power to fire an American worker, legislators and judges should re-think employment at-will or think about creating exceptions to that legal doctrine.

Workers' Compensation Watch

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Tag Archives: employment at-will

Does the “managers rule” greenlight retaliation against whistleblowers?

Unhappy holidays for voluntold light duty injured workers

How is workers’ compensation different for top draft picks?

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

Does employment at-will deter whistleblowers?

Pennsylvania court narrowly interprets workers’ comp. retaliation

The Chinese province of Nebraska?

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