Wrongful Termination Plaintiffs Permitted to Testify as Their Own Experts
How would you like to be the employer in this case?
Two police officers at the University of Texas Medical Branch (UTMB) refused to arrest a patient, saying there was no probable cause and the arrest would therefore be illegal. They were shown the door, and now are suing for wrongful termination.
Firing an employee for refusing to break the law is a violation of public policy, and therefore is a wrongful termination. Thus, this entire case will come down to whether it would have been unlawful for the officers to make the arrest, an issue that might be open to the testimony of an expert witness who can explain the law of probable cause.
So, the time came in the case to designate the expert witnesses, and the plaintiffs designated themselves! Counsel for UTMB screamed, claiming that the judge was the best person to decide the issue of probable cause. Besides, counsel argued, the officers had not provided resumes or articles published in legal journals to show their expertise.
Silly counsel, resumes are for . . . well that doesn't really work. But the standard for an expert is not nearly as high as what you argued. There is no requirement that a person be published or have a curriculum vitae in order to be an expert. He need only show that the has sufficient knowledge of a subject to be able to offer an opinion that would be helpful to the jurors. Seems to me that police officers with training and years of experience would be able to provide meaningful testimony as to what constitutes probable cause.
The judge denied the request to exclude the expert testimony of the officers. A more detailed article about the case can be found here.
This is the flip side of the coin I wrote about in Don't Bet Your Job on Whether You're Right. In that case, a City employee decided that depositing a certain check would be illegal, and refused to do so on that basis. She lost her wrongful termination case, because the judge decided it would not have been illegal to deposit the check.
Video Shows A New Way Terminations May Haunt Employers
"Pregnancy Discrimination" -- one of my firm's practice areas -- popped up in my Google Alerts, and the link took me the the YouTube video below. The video is of a visibly pregnant woman, complaining about how she suffered job discrimination at work due to her pregnancy. People using YouTube videos to vent is nothing new, relatively speaking, but I found this video interesting for a couple of reasons.
First was the fact that it came up so readily in a search. A Google search for "pregnancy discrimination" yields 1,520,000 hits. The video was posted on January 9, 2012, and five days later I was seeing it in my Google Alerts. Thus, employers need to know that even a modest effort as in the case of this video could quickly put a business in a negative light.
The second point of note is how persuasive it is because of the calm manner it was presented. The woman, who identifies herself only as "Angel", is not screaming or making outrageous claims; she just sets forth the facts like she is making a closing argument at trial.
In this case, the employer will probably receive little if any backlash. The audio is pretty poor (Angel, the most important part of a video is the AUDIO!), it has fewer than 100 hits at the time I am writing this, and I don't believe she ever identifies the employer, only her union. Nonetheless, the video offers a valuable lesson.
An employer always ran the risk that a termination would result in a lawsuit, but could minimize the chances of a successful suit by making certain all laws were followed AND that the termination did not have the appearance of impropriety. That second element is now especially important, because even if the employer can prevail in civil court, it might still be found guilty in the court of public opinion, with a concomitant impact on the bottom line.
Be Ever Vigilent to Avoid Disablity Discrimination Claims
The calls to our office involving claims for disability discrimination seem to be rising exponentially, and a recent report by the Equal Employment Opportunity Commission explains why.
The EEOC reports that one-quarter of all the discrimination complaints filed with the agency in 2010 involved disability discrimination claims. There are probably many factors involved in that statistic, but I suspect a major factor is the willingness of plaintiffs’ attorneys to pursue such claims. Discrimination claims based on age, for example, can be hard to prove. If age is truly the motivation behind some adverse job action, it is unlikely that the employer telegraphed that fact. The proof of discrimination will need to come from a showing of disparate treatment, with little or no direct evidence that the employer had it out for older employees. But with a disabled employee, proof of discrimination can come from the failure to accommodate the disability, making the proof much easier.
The recent Supreme Court case of Roby v. McKesson Corp. illustrates the point. In that case, the plaintiff was a valued employee for more than a decade, but began taking medicine to deal with some stress issues. That medicine apparently came with some side-effects, including body odor and open sores cause by her scratching herself. She was sometimes unable to go to work, but she could not always comply with the company’s requirement of 24 hours notice (and, frankly, how often does any employee know 24 hours in advance that he or she is going to be sick?). Add to this, the supervisor was alleged to have berated her at meetings about her condition. She sued and obtained a judgment for $20 million, although it was subsequently reduced to $4 million.
In another case, Sandell v. Taylor-Listig, Inc., an employee suffered a stroke, resulting in his use of a cane and slowed speech. The company eventually terminated him, and he sued for discrimination. The trial court threw out the case on a motion for summary judgment, but that ruling was reversed on appeal, finding that while the company had claimed the termination was for poor performance, there was sufficient evidence to let a jury decide whether that claim was a pretext.
Lesson for businesses: The definition of what constitutes a disability is very broad. If you have an employee claiming some condition that is limiting their ability to work or which needs some special accommodation, listen. You have an affirmative duty to engage the employee in a good-faith dialogue to determine what can be done to accommodate the condition, even if the employee never makes such a request.
Retaliation Claims Can Extend Beyond the Employee
I have always made this claim, but the Supreme Court finally agreed with me.
Title VII makes it illegal for an employer to retaliate against an employee who has filed a discrimination claim. But what if an employer is genuinely evil, and knowing that attacking the employee would be obvious retaliation, instead seeks to put that employee in her place by demoting a spouse or firing a friend? Can that other person also invoke the protections of Title VII, arguing that even though he did not file the complaint, he is protected from retaliation?
That is the situation that allegedly arose in Thompson v. North American Stainless. Miriam Regalado, a female employee, filed a sex discrimination claim, and three weeks later, according to the suit, the company fired her fiancée Eric Thompson. Thompson sued under Title VII, claiming the company had fired him to retaliate against Regalado for filing her complaint.
The District Court was not impressed with the complaint, holding that Title VII did not permit this sort of third-party claims. The Court of Appeals for the 6th Circuit agreed, but the Supremes reversed.
"Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers' unlawful actions," he wrote. "Hurting him was the unlawful act by which the employer punished [Regalado]." In those circumstances, said Scalia, Thompson is "well within the zone of interests" protected by Title VII.
With this opinion, the Supreme Court has cleared up a split of decisions among differing districts. Third-party claims now have the green light.
Lesson for businesses: As I have preached here before, in the context of employment law, perception is reality. The reasons and motives of North American Stainless for terminating Thompson may have been perfectly appropriate, but the timing was terrible. The company created a new claim, and bolstered the original claim. The flagpole watcher approach would have been a better option.
Employment Lawyers Warn Against Glowing Reviews on LinkedIn
Corporate employment lawyers can be real buzzkills. I'm reminded of the early days of the Internet when the corporate types were warning all us lawyers to take down our websites because they crossed state lines and therefore constituted the unlicensed practice of law in other states. Now, when everyone is hot on social networking through sites such as LinkedIn, the employment lawyers warn of dire consequences if employers post nice comments about their workers.
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You see, when an employee is terminated and a lawyer is looking for a way to claim it was wrongful, they look first to the job evaluations and any awards and accolades. If it can be shown that the employee walked on water, then obviously there was no reason to fire the employee and the termination must have been based on some nefarious reason, such as discrimination.
Sadly, a company's compassion can get it in trouble. A company is forced to terminate an employee due to downsizing, so to give his job search a little boost it creates a recommendation for the employee's LinkedIn profile. An employment lawyer will spin that by arguing that at the very moment the employee was being terminated, the company was saying glowing things about him. When interviewed by Law.com, Philadelphia lawyer Carlyn Plump had this to say about that:
"Just don't do it," Plump said. "Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away from much more because there are so many potential ramifications if they say something." She added: "If they say something negative, there could be a lawsuit. If they say something positive, there could be a lawsuit." The entire Law.com article can be found here.
My philosophy? It's not all about avoiding lawsuits. Employers should not be fearful to heap some praise on good and faithful employees just because others file frivolous suits. In any event, for an unfortunate number of plaintiff's attorneys, wrongful termination actions are a form of legalized extortion. They will sue regardless of the merits of the case, hoping for a "cost-of-defense" settlement, and the fact that you said something nice about the employee on LinkedIn will not be the deciding factor.
Top Five Employee Suits
The EEOC recently identified the five most commonly filed employee suits, which are:
sex discrimination and harassment (30.1 percent);
retaliation (22.2 percent);
race discrimination (13.5 percent);
disability discrimination (12.8 percent); and
age discrimination (8.2 percent).
Sadly, many such cases are fomented by plaintiffs’ attorneys who don’t properly advise their clients. Never mind that in a huge number of cases there is not a scintilla of evidence that the termination was based on discrimination, it is enough that the employee belonged to a protected class. In most cases the employer ponies up some cost of defense settlement amount to avoid the uncertainty of trial.
Thus, no one can advise you how to keep your employees from pursuing legal action, but my first post on this site still remains solid advice on how to ultimately prevail if you decide to go the distance.
Deviant Employees Protected from Termination
As you know, Megan's Law set up a website that lists registered sex offenders. Before extending an offer of employment, one might think that checking that website would be a quick way to make sure a sex offender is not being hired, especially if the job involves contact with children. One would be wrong.
California is an at-will employment state, meaning that employers can terminate employees for any reason or no reason at all. Although there are statutory exceptions prohibiting employers from taking adverse employment action on the basis of race, gender, and other protected groups, a loophole in Megan’s Law serves to make sex offenders a protected group giving them rights that other employees do not have.
Sex offenders are filing claims for wrongful termination, utilizing Megan’s Law as the legal grounds to secure and retain employment. The Megan’s Law Statute, set forth in California Penal Code Section 290.46, states that a person is authorized to use information disclosed pursuant to the statute -- that a person is a registered sex offender -- "only to protect a person at risk." California Penal Code § 290.46(1). The statute specifically "prohibits, except as authorized to protect a person at risk or pursuant to another provision of law, the use of any information that is disclosed through the statute for purposed related to any of the following:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business
establishment. (California Penal Code § 290.46(2)(A-H).
In other words, California employers may not discriminate in employment of an employee on the basis of his or her status as a registered sex offender, if such status is discovered through the Megan’s Law website, unless it is to protect a person at risk or pursuant to some other provision of law. One such provision of law is Labor Code section 432.7, which addresses what questions an employer can ask an employment applicant. Labor Code section 432.7 allows an employer to ask and use the fact of a "conviction" in determining any condition of employment; however, legal practice guides have interpreted it to apply only to hiring. As such, California employers may discriminate in "hiring" sex offenders if that information comes from a questions about convictions. However, if the employer fails to ask whether the applicant has any convictions, and later discovers through the Megan’s law website that its employee is a registered sex offender, the employer is liable for wrongful termination if it terminates the sex offender employee based on that information.
This serves to put the employer in an unenviable position: it may be held liable for the sex offender employee’s negligent conduct (for instance, if the sex offender employee physically abuses a co-worker) or face a claim by the sex offender employee for wrongful termination if it fires said employee.
Further, it is nonsensical that an employer can learn this information through other sources (i.e. public records search) and legally terminate the employee on that basis, yet is liable if obtained on the Megan’s Law website. I suppose an employment attorney could suggest to clients that they check the Megan website to see if the employee is listed as a sex offender, and if so, then find the same information from some other source so the termination or rejection would not be based on what was found on the Megan site. But that would circumvent the absurd result intended by our fine Legislature that sex offenders receive special protections, and I would never suggest such a thing.
