Secret Use of Video Cameras to Monitor Employees, Quirky Question # 49
In addition, there are a few other questions I would pose to you. First, where do you intend to install the cameras? Second, are the cameras going to be on 24-7, or will they be confined to the hours following the conclusion of the workday? Third, is your workforce unionized? Fourth, if the existence of the cameras became known to your employees, how do you think they would react? Finally, are there less intrusive methods of gathering the information you deem important? Each of these questions should be assessed by you when considering whether to install video cameras without your employees’ knowledge.
In general, with respect to non-union employees (union employees are discussed further below), the use of secret video cameras is permissible. But I wonder whether use of the cameras is worth the ill-will that likely would be generated (“the company was spying on us” reaction) if the existence of the cameras is revealed at some point. (And, you should assume that, at some point, your company’s use of the cameras will be revealed.) Another concern I have is that the use of video cameras creates the opportunity for mischief. This could apply both to how the cameras are used and what is done with the videotapes generated by the surveillance.
For example, let me start with an extreme (and I hope, atypical) scenario, which concededly is beyond the scope of your question. In a case out of Georgia in 2005, a male supervisory employee at a company set up a video surveillance camera in the ceiling of a women’s worksite restroom. The outcome of the ensuing litigation was predictable – the company lost the “invasion of privacy” litigation even though it claimed ignorance of the supervisor’s conduct. See, Johnson vs. Allen (Ga. Ct. App. March 17, 2005). Oh yeah, another consequence of the behavior was that the supervisory employee was fired.
Even if the supervisor was not just a voyeur and had a legitimate purpose in mind, the secret installation of video cameras in a bathroom, locker room, or similar location is going to lead to litigation the company will not be able to win. For example, even if a company had credible evidence that narcotics sales were taking place in the women’s restroom, the solution is not to install video cameras in the women’s restroom. Call your County Attorney and let the prosecutors and police determine the best way to address your suspicions regarding the sale of narcotics.
Another case, this one from California, illustrates the potential problems with regard to the use of secret video cameras, even if the employer is trying to address a legitimate workplace problem. In the case of Hernandez v. Hillsides, Inc., B-183713 (Ct. App. September 14, 2006), the employer set up a motion-activated camera in an office to determine who was accessing a company computer at night to view pornography. A manager disconnected the camera each day before the workday began and reconnected the camera each night after the workday was over. One day, the manager forgot to disconnect the camera in the morning. Of course, this was the day that two employees discovered the still-recording camera. They sued for invasion of privacy. Although the trial court found that the employer’s interest in installing the video camera was legitimate, and outweighed the two employees’ expectation of privacy in their shared office, the appellate court disagreed. The California Court of Appeals found that an employee “need not establish that he was actually viewed or recorded to succeed on a cause of action for invasion of privacy.” The court noted that the employer could have used the camera if it provided notice to the employees that the camera was in use. But, obviously, this typically would defeat the purpose of the monitoring. [Note that the California Supreme Court accepted review of the Hernandez decision in 2007. I have not seen, however, any subsequent activity relating to this case.]
The Hernandez case was decided on the protections afforded by the California Constitution. This highlights another point applicable to this question, and much of employment law. Although there are critically important federal statutes regulating many facets of employment law (Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the National Labor Relations Act, to name just a few), much of employment law is state law dependent. What may be acceptable in Minnesota may not be acceptable in California or other jurisdictions. Therefore, when determining the appropriate course of conduct for your employer, you must consider where your policies or procedures will be applied.
As referenced above, another key consideration when evaluating the use of secret video surveillance is whether the employees being monitored are parties to a collective bargaining agreement. The National Labor Relations Board has held that it is an unfair labor practice to install hidden surveillance cameras without bargaining with the workers on this subject. See, Anheuser-Busch, Inc., 342 NLRB No. 49, 7/22/04. But, in a split decision, the NLRB did NOT revoke the discipline imposed on the workers (including discharge) based on the activities revealed by the surveillance cameras.
As these examples illustrate, the decision to utilize secret video surveillance is not an easy one. You should ensure that the individuals involved in setting up and monitoring the cameras, as well as handling the tapes, are completely responsible. You should consider carefully whether there is a less intrusive method of obtaining the information provided by the video cameras, recognizing that some courts (especially in some states) may be particularly sensitive to the privacy interests of the affected employees. And, you should ensure that the interests you are seeking to protect could be legitimately juxtaposed to the privacy intrusion represented by the use of this surveillance technique. If you are confident about your analysis of these issues, when applied to the law of the jurisdiction where you seek to install the cameras, and if you are cognizant of the fact that such use would not be appropriate for a unionized workforce, you may elect to utilize surveillance cameras. Finally, however, be attuned to the impact such use, if disclosed, would have on management-employee relations. When you factor that variable into your calculus, you may decide that the benefits of surreptitious surveillance just aren’t worth it.
Blackberry Use and Overtime Pay, Quirky Question # 48
Quirky Question # 48:
The regular business hours for our IT Help Desk are 8:00 a.m. through 6:00 p.m., Monday through Friday. Obviously, people sometimes need IT support outside those hours, and the four non-exempt employees who staff the Help Desk are issued BlackBerries to respond to e-mails and calls outside of regular business hours.
These employees were very happy to get BlackBerries. They used to take turns working late one or two nights a week – now they can monitor Help Desk calls and e-mails while going about their “real lives” outside of work. Our approach seems to be working since I have received positive feedback from our staff that the IT personnel have helped them at a moment’s notice, even at unusual hours (one person reported that she recently received assistance at 2:00 a.m.; another workaholic described how helpful the IT folks were on Christmas day).
Since these are non-exempt employees, should I be worried that we are exposing the company to liability under the FLSA? We’ve made clear to them that they should report any time they spend responding to Help Desk issues outside their regular work hours. Is that enough to minimize any risks?
[My colleague, Nicole Haaning, recently has been involved in a number of FLSA and off-the-clock cases, so I asked her to respond to this Quirky Question. Nicole's analysis is set forth below. By way of background, Nicole is a 1998 of Indiana University, a 2000 graduate of Illinois (with an M.A. in English) and a 2003 graduate of the University of Michigan Law School. Nicole joined Dorsey upon her law school graduation and has worked in the firm's Labor & Employment Law Department throughout her Dorsey tenure. Nicole can be reached at haaning.nicole@dorsey.com. Her direct line is 612.492.6635. If you have any questions regarding the analysis below, do not hesitate to contact her.]
Nicole’s Analysis:
New technologies like BlackBerries, cell phones, and remote-access Internet connections can create wage and hour headaches for employers because they enable employees to work outside the workplace and outside of or beyond regular work hours. One thing is clear: non-exempt employees must be compensated for any time they spend working, even if they are only checking and responding to e-mails between commercial breaks.
Where (like here) business needs require that non-exempt employees respond to e-mail or take calls after hours, the biggest risks employers face are claims that non-exempt employees were not paid for all hours they worked and/or that they were owed overtime for hours worked outside of regular business hours. An employer’s best protection is a clear and consistently-enforced policy that employees are required to record their time and that they will be paid for all time worked, including overtime where necessary.
It sounds like you have implemented such a policy already. To ensure that it is consistently enforced, we recommend taking periodic steps to ensure your IT employees are in compliance. For example, you could periodically check their time sheets or other time records – if you know they are responding to e-mails outside of regular work hours, that time should be reflected on their time sheets.
Of course, it will be difficult for you to monitor or verify the hours your IT employees actually work outside of regular business hours. In this case, where non-exempt employees are responding to e-mails in the middle of the night or on holidays, you may want to set some grounds rules to limit your liability – both for off-the-clock work and unfettered overtime. For example, you could try to manage employees’ expectations regarding 24-7 IT support. IT employees could be officially “off duty” and not required to check or respond to e-mails after 10 p.m. or another reasonable time, or projects requiring support overnight or on weekends or holidays could require advance notice and approval.
For employers who are considering whether to issue BlackBerries or cell phones to non-exempt employees, we recommend they take a step back and assess whether they want or need their non-exempt employees to be checking and returning e-mails and phone calls outside of their regular work hours. In addition to ensuring that employees are paid for all time they work, preventing non-exempt employees from working outside of regular work hours gives employer more control over the amount of overtime they work.
One option is for employers to implement a clear policy that non-exempt employees are not expected to, or permitted to, check e-mail or return phone calls outside of regular business hours, without prior approval from their manager. Employees who do so without their manager’s approval should be paid for their time, but disciplined for violating the policy, up to termination if necessary, to get the message across to repeat offenders. To remove temptation, and make it easier to enforce their policies, employers should think twice before handing out BlackBerries to non-exempt employees or giving them remote access to the company’s computer system. Employees cannot work outside of regular business hours if they do not have access to the company’s systems. On the other hand, if an employer goes to the trouble and expense of issuing BlackBerries to non-exempt employees, it arguably has created an expectation that the employees will be available outside of regular work hours.
Cell phones pose an especially tricky issue, since most employees have their own cell phones and may give their phone number out to customers or coworkers unbeknownst to management. Again, an employer’s best defense is to implement and post a policy prohibiting non-exempt employees from working outside of regular work hours and to discipline offenders.
Before deciding on a course of action, employers should take an honest look at their corporate culture to make sure their policies and culture are aligned. For example, employees may feel there is an unspoken expectation that they will be available and responsive to e-mails or phone calls in the evening or on weekends (whether or not the company provides BlackBerries or other technology). Those employees may feel pressured to break rules prohibiting working outside of work.If they are working but not recording their hours, employers could be liable for unpaid overtime or off-the-clock work since an employer must compensate employees for any work it is found to “suffer or permit.”29 U.S.C. § 203(g).
Whatever policy is implemented, companies must make sure their policies are consistently enforced across the company. That means supervisors cannot look the other way if they are getting e-mails after hours and their reports’ time sheets do not reflect that extra work.
Even with the safeguard of a clear policy in place, there are unresolved legal implications that an employer cannot perfectly plan for:
1) For example, could an employee claim she is so tied to her BlackBerry that she is essentially working from the time she gets up and first checks her e-mail until she checks it one last time, right before bed? Even if the employee is not actively responding to e-mails, she is constantly checking her BlackBerry to make sure she has not received an e-mail. In cases dealing with “on call” time, courts have generally found that employees do not have to be compensated for suchtime as long as they are otherwise free to go about their personal business. See, e.g., Reimer v. Champion Healthcare Corp., 258 F.3d 720, 725 (8th Cir. 2001); 29 C.F.R. § 758.17. BlackBerries, however, require more attention than a pager that is clipped to an employee’s belt and ignored until it goes off. Courts have not yet considered how employees should be compensated for time spent monitoring their BlackBerries.
2) Along the same lines, it may be difficult, if not impossible, for employees to record every single e-mail exchange. Is it okay if some very brief and infrequent exchanges slip through the cracks? The Department of Labor’s regulations permit employers to “disregard” “insubstantial or insignificant periods of time … which cannot as a practical administrative matter be precisely recorded.” 29 C.F.R. § 785.47. This exception applies, however, only where there are “uncertain and indefinite periods of time involved of a few seconds or minutes duration.” Id. Also, “an employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time.” Id. Thus, even if non-exempt employees spend miniscule amounts of time responding to e-mails outside of regular work hours, if they do so on a regular basis, and/or are expected to do so, an employer may not be able to invoke the de minimis exception.
In sum, employers should think hard about whether their business requires non-exempt employees to be responsive to e-mails or phone calls outside of regular work hours. If they do, an employer’s best defense is to implement, and strictly enforce, a policy requiring employees to record all of their time and making clear that they will be paid for all their time.
Faking Illness to Avoid Shift, Quirky Question # 47
Quirky Question # 47:
Our company uses rotating shifts, one of which starts at 11:00 p.m. and continues through 7:00 a.m. Every employee is asked to work that shift, one day, every other week. Every time a particular employee is asked to work that shift, she takes a day of FMLA leave, claiming that she has migraine headaches. She jokes with her co-workers that she is going to get a migraine each time she is assigned to that shift, and no show up for work. How should be respond?
Roy’s Analysis:
Your question raises an issue similar to the inquiry addressed in our Quirky Question # 41. As you may have read, that QQ involved the unusual situation of an employee routinely stopping at a hotel near his place of employment to help himself to the “free” breakfast and “free” newspaper the hotel provided to its guests. In short, the prior question involved the issue of how an employer should deal with a dishonest employee.
The same basic question is presented here, though in a very different context – how should the employer respond to a dishonest employee who is availing herself of the FMLA leave options by periodically claiming, falsely, that she is ill and needs leave. Compounding the problem, she is boasting to her fellow employees that she is going to continue gaming the system on a regular basis in the future.
Before addressing the specific response warranted by this scenario, let’s review some of the basics. The Family and Medical Leave Act (FMLA) provides for up to 12 weeks of unpaid leave for qualifying employees. A qualifying employee is one who has worked for the employer for at least 12 months and who has worked at least 1250 hours in the preceding 12-month period. (In previous questions, I have addressed the unusual circumstances associated with the fact that the eligible employee did not have to work for 12 consecutive months to be FMLA eligible; see QQ # 7.)
One of the more difficult aspects of administering the FMLA for employers is that the leave taken by employees does not have to be taken continuously. Rather, the leave can be utilized “intermittently.” Given that employees are eligible for 60 days of leave (12 weeks times 5 business days per week) annually, the employee described in the question above would be able to skip the shift she wants to avoid during each of the 26 weeks that she otherwise would be obligated to work that shift (once every other week), and still have 34 days of potential FMLA leave remaining.
Two other fundamental points are worth addressing. First, the employer does not simply have to accept the employee’s request for FMLA leave without obtaining medical corroboration of the underlying need for the leave request. Under the statutory scheme of the FMLA, the employer may insist that the employee provide a certification from a health care provider that she has a qualifying medical condition. Moreover, if the employer is not satisfied with the explanation provided by the employee, the employer may insist that the employee visit another medical provider (at the employer’s expense) for a second opinion. If the two medical assessments are in conflict, the employer may insist upon a third opinion (again at its expense) to be provided by a medical provider agreed upon by the first two medical practitioners who provided opinions.
Second, in general, “migraine headaches” may (or may not) qualify as a “serious health condition” under the statute, sufficient to provide employees a right to take FMLA leave. Again, this determination will likely depend on various medical considerations – e.g., how frequently does the employee get the headaches, how severe are the headaches, how incapacitated is the employee because of the headaches, how long has the employee experienced the headaches, is the employee utilizing prescription or non-prescription medications that adequately address the physical problems associated with the headaches. Presumably, these and similar inquiries are the types of questions that will be explored in the medical examinations.
Turning then to the specific factual scenario described above, you have several options. One option is to simply allow the employee to take the leave she requests once every other week. In my view, however, this is a bad idea. First, presumably, you will need to get some other employee to work the shift that the employee is skipping. If that employee already has worked 40 hours that week, you will have to pay the replacement employee overtime compensation for the skipped shift. Simply put, even though you don’t have to pay the employee taking the leave for the shift she misses, her decision to skip one shift every other week could cost your firm money.
Second, the other employees (many of whom also may be unenthused about working this late-night shift) may resent the fact that their co-worker is skipping the shift and that the company is tolerating her regular absences. Other employees may perceive this situation as unfair and they would be correct.
Third, given that the employee is boasting to her co-workers that she is going to miss the shift every other week, for what she concedes is a pretextual reason, accepting this conduct by her has two adverse consequences. It could exacerbate the resentment other employees feel toward the employee and the company. And, it sends the wrong message to the workforce. Allowing the employee to take the leave basically communicates to this employee and the rest of the workforce that she can abuse the company’s leave rules (as well as misuse the legitimate benefits of the FMLA), without consequence. If this approach were utilized by the company, you should not be surprised if other employees also decide that they would like to take some time off, either intermittently or on a more protracted, consecutive-day or consecutive-week basis.
Another option then would be to confront the employee about her request for leave and her statements that she is going to get a well-timed migraine headache every time she is asked to work the late shift. Assuming you corroborate the fact that the statement was made (either by speaking with a sufficient number of other employees or by obtaining an admission from the employee that she made this statement), you simply could deny her request for FMLA leave. The corollary question you should assess is whether you also want to discipline the employee for making a fraudulent request for leave. If you conclude that the employee is dishonest, and you have a legitimate aversion to employing dishonest employees, discharge her. If you conclude that this penalty is unduly harsh, you could consider utilizing a “last chance” warning or explaining to the employee that any further acts of dishonesty will result in her termination.
A third option you may wish to consider would be to rely on the mechanisms provided in the FMLA to address this situation. For example, if other employees did not provide clear corroboration of the employee’s statements and the employee herself denied making them, you could sit tight until she requested leave. Once the request was made, you could avail yourself of your right to seek a medical opinion regarding the employee’s condition. Taking advantage of the FMLA procedures could have a couple of benefits. First, you will get some independent insights into whether a health care practitioner will rubber-stamp the employee’s leave request. Second, if the employee’s health care professional validates the employee’s “need” for the leave, you will have gained an insight into that individual’s objectivity and veracity. Third, I would expect that your own physician will point out that migraine headaches do not arrive on schedule at 6:00 p.m. (an hour before a 7:00 p.m. shift, every other week). Presumably, this health care professional will support the company’s rejection of the leave request. As described above, if there is a conflict in the opinions of the two health care practitioners, you could demand a third opinion. Of course, the biggest downside to this approach is the attendant cost.
The bottom line is that your company should not honor your employee’s request for intermittent leave every other week for “migraine headaches.” If your employee makes the imprudent decision to litigate this issue, you should prevail.
Supplement to Analysis of QQ # 47
On July 14, I posted QQ # 47, a situation presented to us by one of our clients involving an employee who advised her co-workers that she “planned” to get migraine headaches every time she was asked to work a particular late-night shift. On July 21, I posted my analysis of that question.
On July 23, 2008, I saw a report of a decision from the Seventh Circuit, Vail v. Raybestos Prods. Co., No. 07-3621 (7th Cir. July 21, 2008), involving an employee who was terminated by her employer for abusing the intermittent leave provisions of the Family and Medical Leave Act (FMLA). Coincidentally, the employee had been fired for periodically claiming that she needed leave because of her unexpected “migraine headaches.”
Although the employer previously had agreed to allow the employee to take FMLA leave as a result of her migraine headaches, it became suspicious of the employee because of the timing of the requests for leave. The employer retained a private investigator to learn what activities she engaged in during the time she was too ill to work and discovered that during these periods of ‘incapacity,’ she was cutting lawns for her husband’s lawn service business. Based on this information, the employer terminated her employment.
The employee sued her employer for interfering with her rights under the FMLA. The District Court granted summary judgment to the employer and the 7th Circuit affirmed. The appellate court pointed out that the employee must demonstrate that she took the leave “for the intended purpose of the leave,” 29 U.S.C. § 2614(a)(1), and that the employer can defeat a FMLA claim by showing that the employee did not take leave for the “intended purpose.”
The Court noted that an employer is under no obligation to reinstate an employee returning from FMLA leave if the refusal is based on the “honest suspicion” that the employee was abusing the leave. Persuaded that the employer had an “honest suspicion” that the employee was abusing the leave (as reflected by the timing of the leave requests and the lawn cutting work in which she then engaged), the Court found that the Raybestos had not violated its employee’s FMLA rights by ending her employment.
Firing An Employee for Having an Abortion, Quirky Question # 46
Quirky Question # 46:
We are a privately held company that runs a large software sales organization. The family that started our company and that still dominates its executive ranks has conservative values. Among those issues about which the owners feel strongly is the abortion issue. They do not believe that women should have abortions under any circumstances.
One of our employees who was pregnant recently learned that there were serious problems with her unborn child. Although her own life would not have been in jeopardy had she carried the child to term, her physicians recommended that she terminate the pregnancy. She and her husband agonized over this decision but decided to follow the medical recommendations.
I am the HR Director and I have now been instructed to terminate our employee’s employment. No explanation has been offered for why the company wants to discharge her. I do know, however, that she has not previously had any performance problems. To the contrary, she always has been highly regarded, a fact that is reflected in her glowing annual performance appraisals. Moreover, the discharge decision is not being motivated by any economic downturn. Our company is exceeding our year’s financial goals and no other employees are being laid off.
My instincts tell me the directive I have received is motivated by the fact that our employee decided to have an abortion, though no one specifically provided that explanation to me. Nevertheless, this directive just does not sit well with me. If I terminate her employment when she returns from the leave associated with the medical procedure and the funeral of her child, will I be exposing the company to risk?
Roy’s Analysis:
As I have stated in other Blog analyses, trust your instincts. Based on the facts you report, you would be exposing the company to risk. Terminating an employee because she had an abortion violates Title VII, and the Pregnancy Discrimination Act (PDA) contained therein.
Although this particular issue has not been litigated frequently, the federal courts that have examined this issue have held that is impermissible for an employer to terminate an employee because she elected to have an abortion. This analysis is supported by the legislative history of the PDA and the Equal Employment Opportunity Commission (EEOC), to which the courts often defer when adjudicating issues relating to employment law.
The PDA states, “the terms ‘because of sex’ or ‘on the basis of sex’ include but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 200e(k). The question, therefore, is whether an abortion is a “related medical condition” under the statute.
As referenced above, the EEOC has weighed in on this issue. The EEOC has stated that,
“The basic principle of the [PDA] is that women affected by pregnancy and related medical conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired . . . merely because she is pregnant or has had an abortion.” 29 C.F.R. pt. 1604 App. (1986).
The EEOC’s interpretation of the PDA also is consistent with the legislative history of the statute. “Because the [PDA] applies to all situations in which women are ‘affected by pregnancy, childbirth, and related medical conditions,’ its basic language covers women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.” H.R. Conf. Rep. No. 95-1786 at 4 (1978), reprinted in 95th Cong. 2d Sess. 4,1978 U.S.C.C.A.N.4749, 4766.
In a very recent case from the Third Circuit Court of Appeals, Doe v. C.A.R.S Protection Plus, Inc., et al., Nos. 06-3625, 06-4508 (May 30, 2008), the appellate court analyzed these issues in light of the language of the PDA, its legislative history and the EEOC’s position, and stated, “We now hold that the term “related medical conditions” includes an abortion.”
The C.A.R.S case went up to the Third Circuit after the District Court granted the employer summary judgment on the plaintiff’s Title VII claim. The appellate court reversed.
The facts in C.A.R.S were straightforward. One of the company’s employees discovered that there were serious medical problems associated with her pregnancy. The employee learned her unborn child had severe deformities leading her physician to recommend the pregnancy be terminated. She and her husband evaluated the recommendation and elected to follow their physician’s advice. Because C.A.R.S had a miserly leave policy for its employees (the appellate court charitably described the leave policies as “less than compassionate”), which did not provide for any personal or sick leave and five days of vacation only after an employee had been employed for at least one year, the employee’s husband had kept the company apprised of his wife’s medical visits. He also requested leave time for his wife for the funeral and asked whether she could use her vacation week to grieve following the funeral. There was conflicting testimony about whether this request had been granted by the employer. But, there was no dispute that on the day of the funeral, the company packed up the employee’s personal belongings and terminated her employment.
The company attempted to demonstrate that its discharge decision was not discriminatory. Rather, the company argued, it was based on its policies prohibiting any personal or sick leave. The appellate court, however, found that those policies were not uniformly applied and that several male employees had been given time off for medical-related conditions (mental illness, heart attack, back problems, etc.). The evidence also demonstrated that there was no uniform policy regarding whether an employee was required to call in to the company to request time off for an illness.
Based on these facts, the appellate court found that Doe (the District Court agreed to allow the plaintiff to be identified anonymously) had made out a prima facie case of pregnancy discrimination. The Third Circuit also found that Doe had raised a fact issue as to whether the reasons articulated by C.A.R.S for its decision were pretextual. Here, the court pointed to some of the same evidence that had been used to establish the prima facie case, as well as a comment by Doe’s supervisor that the lower court had inappropriately treated as a “stray comment.” The appellate court also found that the temporal proximity between the employee’s decision to terminate her pregnancy and the company’s decision to discharge her was “unusually suggestive,” noting that temporal proximity alone may be sufficient to create an “inference of causality” sufficient to defeat summary judgment.
The Third Circuit sent the case back to the trial court for further proceedings. Assuming it is not resolved through settlement, the jury will have to decide whether the evidence supports the argument that Doe was fired because she elected to terminate her pregnancy or whether she was fired for “abandoning” her job, as alleged by the company. The underlying legal issue on which Doe’s case is grounded, however, has been resolved – it is a violation of Title VII and the PDA to terminate an employee because she elected to have an abortion. The task for the jury will be to make a factual determination regarding the employer’s true motivation for discharging the employee.
In the fact pattern presented in your question, you posit that you have been directed to terminate the employee who recently had an abortion. I suggest that you explore with your company’s management the underlying reasons for why they wish to terminate the employee. If they acknowledge that their motivation to discharge her is driven by her decision to have an abortion, you should explain that such a decision would constitute a violation of Title VII and the PDA. If they direct you to terminate her employment anyway, you have an ethical decision to make. Consider it in the broader context of whether you would engage in other illegal conduct simply because you supervisors directed you to do so. For example, if your boss told you to fire someone based on his race, age or other protected classification, would you do so?
Unemployment Compensation Challenge, Quirky Question # 45
We recently had an employee voluntarily resign because she found employment with our company “unbearable.” She then sought unemployment benefits. It is my understanding that an employee in Washington who quits is not entitled to unemployment benefits. Do we have grounds to challenge her claim?
In sum, if you do decide to challenge a former employee’s claim for unemployment benefits, the fact that they quit may not be enough to defeat the claim by itself. Until either the Legislature or case law provides more guidance, the likely outcome of employer objections under these circumstances is unclear.
The other question you should consider is whether it is wise to challenge the former employee’s request for benefits. Some things to think about:
(1) What risk do you run that the former employee will file some type of wrongful termination suit against your business in the future? If the former employee feels that they were fired for a discriminatory reason, but you have evidence that they were fired for misconduct, you may want to defend against the unemployment insurance claim. If you win, it shows that you have support for your position and may discourage the former employee from pursuing any other claims, and provide additional evidence to bolster your defense if they do file a lawsuit. Of course, an opposite result at the unemployment compensation stage, especially if it turns on collateral conduct (e.g., an employee claiming sexual harassment) may embolden the employee.
(2) How much is contesting the claim going to cost in lost productivity and out-of-pocket costs? The process of contesting an employee’s unemployment compensation claim can be distracting and a drain on the employer’s human resources, as many times lawyers do not represent employers at such proceedings.
(3) How likely is it that contesting the unemployment benefits will make the employee more likely to sue? An employee who receives his/her benefits may have a more favorable feeling about the employer and more quickly move on with his/her life. Your analysis of this factor will depend largely on how well you know the former employee.
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