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Entries in wrongful termination (5)

Thursday
Sep282017

Executives Behaving Badly: Can CEO be Fired for Kathy Griffin Hate Speech?

Wrongful Termination Defense

by Amy I. Huberman

818-907-3014

 

Neighbors don’t always get along – not even affluent neighbors living in exclusive gated communities in Bel-Air.

Disciplining Executive EmployeesThis was proven most recently, when the Huffington Post released security camera audio of Jeffrey Mezger yelling profanities at his neighbor Kathy Griffin and her partner Randy Bick. Warning: the audio is definitely NSFW – keep the speakers on low so as not to offend colleagues.

Mezger is the Chief Executive Officer of KB Home which is one of the largest home builders in the nation, and a publicly traded company.

Griffin, of course, is a well-known and somewhat controversial comedienne. In July she shaved her head to show support for her sister who was dying of cancer. In August she was fired by CNN for posting a photo in which she held a mask of President Donald Trump covered in fake blood. In mid-September, Griffin’s sister passed away, and more recently, she was the target of Mezger’s rant.

Mezger called Griffin, among other things, a “bald f-ing dyke” – not just obscene, but truly insensitive to Griffin’s recent loss.

The reason for Mezger’s rant?  He was upset that Griffin and Bick called the police with a noise complaint between 8 and 9 p.m. on a Saturday night. The alleged noisemakers were Mezger’s young grandchildren who were playing in the pool – supervised by the children’s mother and grandmother.

Mezger’s anger may or may not be justified, but how he expressed his anger was not. His employer acted quickly to minimize damage.

An Employer’s Right to Terminate

Some may believe what an employee does outside of the workplace is strictly the employee’s business. That’s mostly true, but only to a certain extent. And what about free speech rights?

These concerns were addressed recently, just after the Charlottesville “Alt-Right” march last August. 

Photos from Charlottesville featured individuals who were later identified by the public in social media, and tagged by Twitter user @YesYoureRacist. There was a very public call to action via social media for employers to fire the Alt-Right participants, particularly those brandishing swastikas.

Here are some legal clarifications:

First, the Bill of Rights protects citizens from our government’s attempts to quash speech – the Bill doesn’t protect employee speech from employers. There are other laws for that, as seen below.

Second, most California employees are “at will”, and can be terminated for any reason or no reason at all, provided the decision is not based on race, age, religion, gender, gender identification, marital status, or other protected categories defined by state and federal laws.

California’s Labor Code section 1101-1106  prohibits employers from discriminating against employees for expressing political views. Discriminatory or adverse acts could include firing, or refusing to consider the employee for promotions, bonuses, professional training, or other opportunities. However, there are exceptions. 

For instance, if an employee’s political activity creates a conflict of interest, or if the activities interfere with work duties.  In Mezger’s case, there is some evidence KB Home’s stock prices dropped about three percent following release of the meltdown audio. As CEO, Mezger has a fiduciary duty to protect the company.

How Can Employers Reduce Risk of Wrongful Termination Claims?

Separation Agreement to Reduce Claims Risk

Mezger’s expletive-ridden rant created a public perception problem for KB Home. But the employer in this case reacted quickly and we think, effectively.  

Here’s what employers in this position should consider: 

  1. The home builder chose to slash Mezger’s year-end bonus by 25 percent. There is some question as to whether or not the CEO will even earn a bonus this year, but Mezger is on notice that his behavior affects his income.

  2. KB Home created a written record expressing that the CEO’s “personal dealings with a neighbor is unacceptable….” The record is a public filing with the securities exchange, but most other employers can just send a troublesome employee an email or memo. Either way, the employee should be informed in writing, and a copy added to the personnel file.

  3. The employer protected its interests. Though KB Home states it has full confidence in Mezger’s abilities (this may cause a problem if Mezger ever files a wrongful termination suit against KB Home in the future), the builder also states outright that Mezger will be terminated should similar incidents occur later. 

The lessons for employers?

First and foremost, make expectations clear. If those expectations are not met, consider a separation agreement as a means to offer the employee a bit of transition assistance in return for a waiver of future claims.

Amy I. Huberman is an Employment Defense Attorney.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Jul132016

Terminated: A Marriage’s End Should Not Lead to Employment’s End

Divorce Attorney
Discrimination Defense Attorney

by Vanessa Soto Nellis
& Nicole Kamm

 

Last month, the New Jersey Supreme Court ruled in Robert Smith v. Millville Rescue Squad (MRS) that an employer cannot terminate an employee for separating or divorcing – the processes of which apparently falls under the protected category of marital status under New Jersey’s Law Against Discrimination (LAD).

 

Operations director and paramedic Robert Smith and his wife both worked for MRS and decided to separate when he began an affair with a squad volunteer. When Smith asked about continued employment, the squad’s CEO, John Redden, said it “All depends on how it shakes down.”

Redden also allegedly told Smith at a later meeting that the CEO would not take the case to the squad’s board if there had been the slightest chance of Smith and his wife reconciling; and that Smith “had eight months to make things right” with his wife. He also warned Smith the divorce would be “ugly”.

The board decided to terminate Smith based on corporate restructuring, poor work performance, and failure to improve work performance.

Smith sued MRS, alleging wrongful discrimination and wrongful discharge under New Jersey’s LAD. Smith testified that he was never subject to formal discipline, received annual raises, and was promoted twice.

The trial court ruled Smith failed to show he was discriminated against. An appellate court reversed, and the New Jersey Supreme Court unanimously upheld the appellate decision, stating the LAD prohibits employers from discriminating against job candidates and employees because they are single, married or “transitioning from one state to another”. The court considered the CEO’s comments to be biased against people seeking divorce.

Marital status is one of the extensive list of protected categories under California’s Fair Employment and Housing Act. Under Government Code §12940(a), employers are prohibited from refusing to hire, employ, or train; discriminate in compensation, employment conditions or privileges; or terminate an individual because that person is married, single, separated or divorced.

These protections for divorcing employees may raise some issues for business owners and management. Consider the following: 

  • Spouses of partners and employees with complex compensation packages may have a financial interest relating to spousal and child support, which means a company may have to undergo a valuation process.

  • A valuation could mean a disruption in operations as employees gather and provide information for forensic accountants who may need to review the books, inventory, etc.

  • A business’s human resources department may be subpoenaed to provide information. 

So unless a business qualifies for a rather narrow ministerial exception, an employer can’t fire an employee for divorcing. 

An Ounce of Prevention: Protecting Business Interests

From a family law perspective though, there are some things a business owner may do to minimize damage from an employee or business partner’s divorce:  

  • Business partners and highly compensated executives should draw up prenuptial or postnuptial agreements, and have a buy-sell agreement in place.

  • Business owners should compensate themselves and their partners with actual salaries, rather than stock or other interests in the business. An ex-spouse may in certain cases, wind up with ownership interests.

  • Partners and major shareholders going through a divorce should consider hiring a joint forensics accountant to represent both parties, to hopefully reduce disruptions to business operations.

  • Get a valuation of the business at the date of marriage.

  • Management should limit exposure of private records like confidentiality agreements and redactions to agreements. Trade secrets, employee files, and private financial records for the business and individuals may be at stake here. An attorney can provide counsel as to what records need to be provided, to whom, and how to keep them all out of the public record.

  • Client information may need to be protected, particularly under the Health Insurance Portability and Accountability Act.  

Employers should also be aware of the various protected categories and take steps not to discriminate, harass or retaliate against an employee on such bases.

 

Vanessa Soto Nellis and Nicole Kamm are Shareholders at our firm.  

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Feb052016

What's a "Yahoo"? An Object Lesson in Employer-Employee Relations

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Can you mistakenly fire employees? According to recent media reports, Yahoo apparently did.

Terminations and Layoffs Attorney

News about Yahoo’s mix-up were reported earlier this week in various media outlets. As it turns out, as many as 30 employees have been let go in conversations with their supervisors but were later told that they were simply on the lower performance scale  - and were not meant to be fired.  

Additionally, the company’s performance review system is now challenged in court by an ex-employee, who claims the rules implementing Yahoo’s Quarterly Performance Reviews (“QPR”) were vaguely drawn and communicated on a need-to-know-basis, thus making the QPR process subject to abuse.

What can employers learn from Yahoo’s reported mistakes?  

  • If you use a performance evaluation system, make sure your supervisors understand the system and its guidelines;

  • Communicate with management. A quick clarification can go a long way;

  • Do not underestimate managerial training. Performance reviews can be very helpful or ridiculously awkward, and as we see here, may possibly generate lawsuits. Educate your supervisors about the proper way to conduct performance reviews.   

  • And do not fire employees you do not intend to fire!

 

Tal Burnovski Yeyni is an Employer Defense Attorney at our firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Dec102015

Wrongful Termination & Disability Discrimination: Sarkisian Goes Head to Head With USC

Wage and Hour DefenseEmployment Litigation Defense

 

 

by Sue M. Bendavid

818.907.3220

 

Employment Discrimination Defesne

 

After a much publicized struggle with alcoholism and public firing by the University of Southern California, former head coach for the football team, Steve Sarkisian, has filed a lawsuit against the university.

According to several media outlets, one of the incidents that led to Sarkisian’s termination was the coach’s inability to speak properly at a USC pep rally in August.

The coach was slurring, and used an expletive while speaking onstage. In contrast, Sarkisian claims he had a few beers and took some anti-anxiety medication before the event. Allegedly, USC’s athletic director, Pat Haden, demanded Sarkisian sign a letter requiring the coach apologize to the team and the media, and to obtain counseling with a school therapist.

Sarkisian’s lawsuit against USC asserts claims for, among other things, breach of contract, disability discrimination, medical confidentiality violations, and wrongful termination. Sarkisian is seeking $12.6 million in contract damages as well as additional sums for “extreme mental anguish as a result of not only his wrongful termination, but also the manner in which he was terminated and the statements made about that termination by USC.”

The complaint also states that:

“Instead of supporting its Head Coach, Steve Sarkisian, when he needed its help the most, USC kicked him to the curb. Instead of honoring the contract it made with Steve Sarkisian, USC kicked him to the curb.”

Sarkisian and his attorneys further allege that Haden repeatedly and derisively said “Unbelievable” during a phone call in which Sarkisian asked for time off to get help for alcohol addiction, placed the coach on indefinite leave, and subsequently wrongfully terminated him.

Both state and federal law provide protections for disabled employees. California’s law is the Fair Employment and Housing Act (FEHA).  The federal law is the Americans with Disabilities Act (ADA).  Both FEHA and the ADA recognize that alcoholism is a form of disability. As noted by the Equal Employment Opportunity Commission (EEOC), employers must make reasonable accommodations for disabled employees if the accommodation will not result in an undue hardship on the employer.

Also, under California Labor Code Sections 1025-1028, certain employers must make reasonable accommodations for employees who ask for time off to enter rehab. And, the employer must maintain the employees’ privacy.

What Should Employers Do To Keep Workplaces Running Safely and Efficiently?

Lawyer for EmployerEmployers should remember that alcoholism is a disease recognized by the American Medical Association, and that this disease may entitle an employee to take time off from work. Not only may employees have leave rights under the ADA and FEHA, but also under other leave laws such as the Family and Medical Leave Act and the California Family Rights Act (for employers with more than 50 employees).

Employers who must terminate an alcoholic should do so with caution. They should consider all of the circumstances of the employee, including work history, performance records and other factors. Documentation of misconduct is key to helping prove that the termination was due to performance and not to a disability.

Employers should also establish policies and ensure all employees are aware of such policies prohibiting the use of alcohol or controlled substances while working.

 

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her by phone: 818.907.3220, or by email: sbendavid@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Jul212015

Wacky Employee Claims: What Employers Can Learn From Outlandish Situations

Lawyer for EmployerWage and Hour Defense

 

 

by Nicole Kamm
818.907.3235

 

Think you've heard every cautionary workplace tale? Believe it or not, you probably haven't – the real question is, how prepared are you to handle wildly unusual complaints, extreme accommodation requests, and highly awkward situations?

We compiled some of the most interesting recent, real-life scenarios below. Sometimes, the employer acted reasonably, and in other situations, failed miserably. But each case serves as a reminder to employers: When making employment decisions, proceed with caution and advice from counsel. 

 

#4. Religious Discrimination Reeks

Religious discriminationThe Equal Employment Opportunity Commission (EEOC) filed suit against a New York company that forced employees to participate in a religion called "Onionhead." Employees were made to wear Onionhead buttons, dim the lights, join prayer groups and participate in other Onionhead-related activities. Employee resistance was futile, and in three cases led to humiliating treatment and eventual termination.

Employers: Avoid imposing your religious (or non-religious) beliefs on your employees. 

 

#3. Displeasing Prosthetics

An employee who worked for a snack food maker in Pennsylvania was considering gender reassignment surgery. She told a few coworkers about her potential surgery, and also confided that she was wearing a prosthetic penis at work to help her make a decision. The prosthetic was not visible, but one of her coworkers informed management, and the employee was soon fired.

The employee filed a federal civil rights complaint seeking back pay, compensation for suffering and humiliation, and punitive damages.  She claimed a male coworker who underwent hormone treatments and cross-dressed was treated more fairly, and her complaint alleged disparate and discriminatory treatment for being a female, and for being a female who identified as male.

Employers: The EEOC has determined that discrimination based on gender identity is sex discrimination under Title VII of the Civil Rights Act. California also makes it unlawful to discriminate based on gender identity or expression, under the Fair Employment and Housing Act. 

 

#2. Quid Pro Quo Grooming

An employee claimed that her supervisor made several sexual advances to her, and became "biased and angry" when the employee rebuffed those advances. She complained to her supervisor’s supervisor– but during this period the employee herself was written up several times for tardiness and inappropriate dress. Management decided to implement a work performance improvement plan for the employee, and the employee claimed no further discussions regarding her supervisor’s inappropriate behavior took place with upper management.

Then this happened: The supervisor called the employee to his office – the employee assumed it was to have a performance evaluation discussion. However, the supervisor asked the employee to extract an ingrown hair from his chin.  The employee refused. The supervisor then informed the employee that he could have her fired.

Shortly after this incident, the supervisor was instructed to terminate the employee, citing work performance issues observed by members of management.

The employee alleged age discrimination and sexual harassment in her claim brought to a federal court. The district court found that the ingrown hair request was not severe enough to be considered sexual harassment, though an Appellate court disagreed. The case was remanded back to district court.

Employers: Asking employees to perform personal grooming tasks is not appropriate; termination decisions should be based on legitimate business reasons and thoroughly documented. 

 

#1. Popping Positive for GINA Violations

This employer may have flushed over $2M down the sewer.

When management at a grocer's warehouse discovered that someone was defecating in the aisles and on top of canned goods, they immediately became concerned of potential health risks and took drastic action. The company ordered certain employees to submit to cheek swabs so they could identify the DNA of what a district court in Georgia called "The Devious Defecator."

Two employees submitted to the DNA test and were found to not have matching DNA of the defecator.

The employees later filed suit for violations of GINA, the Genetic Information Nondiscrimination Act. The employer contended the cheek swab testing did not provide medical information about the employees, and filed a motion for summary judgment. After losing on summary judgment, a jury awarded the plaintiffs $2.25M ($1.75M in punitive damages).

Employers: GINA clearly states it is "illegal for an employer to request, require, or purchase genetic information" of an employee, even if obtained for arguably reasonable business reasons.

 

What are the lessons learned from the bizarre claims made above? First, employers must be aware of the myriad laws governing the workplace. But more importantly, when these odd situations do come up, know to spot the issue, take proper action, and consult counsel with any questions. You can read more strange employee situations in a previous blog: Wacky Employee Claims.

 

Nicole Kamm is an Employment Defense Attorney. Contact her via email: nkamm@lewitthackman.com or directly by phone: 818-907-3235.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120