By Lorene D. Park, J.D.
Let’s face it; romances between coworkers are more common than most people (particularly married people) want to admit. Many employers have non-fraternization policies due to fears that such relationships will lead to harassment suits but, frankly, that’s like locking your patio door. If someone wants to break in, they’ll simply break the glass. So a policy, however well drafted, is unlikely to stop two consenting adults who are determined to take things to the next level. And much like the hapless homeowner on the day after the burglary, the employer will be left to pick up the pieces of a fizzled romance. That’s when the policy can help — particularly if it is enforced fairly.
For example, in Rau v United Parcel Service, Inc, a federal district court granted summary judgment for an employer on all claims by a female UPS supervisor that depended on allegations that she was treated worse than her ex-boyfriend, who was also a UPS supervisor. The policy violations came to light when she asked to transfer after their romance fizzled, and the employer gave them the same choices between discipline and separation agreements (D. Idaho, July 31, 2013). Her claims of emotional distress also failed.
Of course, disparate treatment isn’t the only issue for employers. In another case, an employee who ended a two-year affair with her supervisor and quit after she found out he was already married, sued the employer for sexual harassment (Kane v Honeywell Hommed, LLC, D. Colo. July 30, 2013). Dispensing with her claims on summary judgment, the court noted that the facts surrounding the relationship, including her efforts to maintain it, indicated the sexual conduct was not unwelcome. Her continued excellent performance further undercut her HWE claim. Moreover, her claim that the failure to rehire her (when she wanted to come back) was in retaliation for her EEOC charge also failed, because she did not show the employer knew of the charge.
You would think that two adults who so easily (and enthusiastically) navigate themselves into such relationships and hide the fact from their employer could clean up their own mess if the relationship sours but, all too often, it is the employer that has to pick up the pieces. When that happens, here is some advice:
- You can have policies limiting supervisor-subordinate relationships and requiring disclosure of relationships but recognize, realistically, that willing participants will actively hide policy violations for fear of losing their jobs
- When drafting any fraternization policies, avoid running afoul of other laws such as the NLRA (coworkers may discuss the terms and conditions of employment on and off duty) or privacy laws
- Along the lines of privacy, make sure any investigation into policy violations only discloses information on a relationship to HR staff or managers who need to know
- Ensure that your sexual harassment policies cover situations where once consensual relationships turn sour (give more than one avenue for a subordinate to complain)
- Treat the participants in fizzled relationships as equally as possible
- Be able to justify all responses to such relationships with a legitimate business reason
To avoid potential problems in giving references, many employers have adopted a policy of releasing only very limited objective and factual information, such as dates of employment and salary history. One obvious danger of providing a recommendation is the possibility of being sued if the employee does not perform satisfactorily or does something to damage the company that relied on the recommendation.
Supervisors say the darnedest things. Two recent court decisions should serve as reminders to employers of the hazard of providing recommendation letters, even well intentioned ones to good employees. In a decision from the Sixth Circuit, a 52-year old employee was laid off following a downturn in his employer’s business. He was chosen after his supervisor, who had been asked to rank all the employees against each other, placed him at the bottom of the list. Unfortunately for the employer, when the supervisor informed the employee of his termination, he told him that age played a factor in the decision and admitted that he retained a younger worker because he would be with the company longer than the employee.
At the employee’s request, the supervisor wrote a letter of recommendation in which he described the employee as “a key member of the design group,” who “performed all the tasks given to him at a high level.” When the employee subsequently sued for age discrimination, the Sixth Circuit rejected the company’s argument that it would have discharged him absent an impermissible motive because he was an inferior performer compared to the younger worker. While there was some evidence to support this, the court found that a genuine fact issued existed, thanks in part to the supervisor’s letter. Although not a “glowing recommendation,” it was enough, in the court’s opinion, to establish that the employee was a competent worker. Accordingly, the employee could proceed to trial on his state law age bias claim.
But it wasn’t really a recommendation. Just one day earlier, a federal district court in Virginia found that there was a fact issue as to whether an assistant librarian, who sued a school board for religious discrimination, was performing satisfactorily at the time of her discharge. In this case, the court found that there was ample evidence that she was having performance problems. Despite this, it denied the employer’s motion for summary judgment based in part on the favorable letters of recommendation that the principal and assistant principal wrote for the employee immediately after she was terminated. While the employer argued that the letters did not actually “recommend” the employee for any job and that neither letter expressly stated that she was performing satisfactorily in her job, the court was not persuaded. “Viewing both letters from the perspective of a future potential employer who received them, the message conveyed is much simpler: [the employee] was a great employee.” Thus, in the court’s view, the letters provided at least some evidence that she was performing satisfactorily.
While in both of these cases, the employers, or at least the supervisors, appeared to be trying to “do the right thing” for employees who just lost their jobs — one in a downsizing and the other in part because of a personality conflict — the recommendation letters were used by both employees to support their contention that they were not fired due to poor performance but rather because of their employer’s discrimination. For those employers that do not absolutely prohibit letters of recommendation, and even for those that do, these cases provide yet one more reminder of the importance of training all supervisors to understand the difference between their personal opinions and actions, and those actions that arise out of their employment status that could be attributed to their employer.
Because retaliation charges were the number one charge received by the EEOC in fiscal 2012 — 38 percent of all charges filed — they are worrisome for employers, notwithstanding this summer’s Supreme Court Nassar decision tightening the proof requirement to but-for causation. Against this backdrop, the Seventh Circuit recently decided a retaliation case that is raising eyebrows.
“Take this job and shove it.” In Benes v AB Data, Ltd, an employee who had worked for only four months filed an EEOC charge of gender discrimination. During EEOC-arranged mediation, the parties went to separate rooms; as is typical, the mediator would shuttle back and forth to relay offers and counter-offers. The employee became so upset with a proposal that, against protocol, he stormed into the room occupied by the employer’s representatives and loudly said: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Having said his piece, the employee stalked out, leaving the room’s occupants shaken. Within an hour, the employer accepted his counterproposal — it fired him.
Firing as sanction for mediation misconduct. In the employee’s subsequent Title VII retaliation suit (he abandoned his sex discrimination claim – surprise), the Seventh Circuit concluded that the employee was fired for misconduct during the mediation, not for making a charge of discrimination. If misconduct during litigation can form the basis for sanctions, why should misconduct during mediation be consequence-free? After all, Title VII only forbids employer actions that would dissuade a reasonable worker from making a charge or participating in an investigation of discrimination. Being fired for an egregious violation of mediation protocols wouldn’t discourage a reasonable worker from making or supporting a charge of discrimination any more than sanctions for misconduct in court discourage the filing of lawsuits, reasoned the court. What those sanctions discourage is the misconduct.
Employees aren’t insulated from their conduct that takes place within an investigation of discrimination if that would warrant termination outside an investigation, it said. Think about it: If the employer would have fired an employee who barged into his supervisor’s office, in the presence of others, and said what the employee said, then the employer was entitled to fire him for doing the same thing in mediation. Title VII “does not create a privilege to misbehave in mediation,” the court concluded.
Who imposes the sanctions? Nor did the Seventh Circuit make much distinction between court- or mediator-imposed sanctions for mediation misconduct, and employer sanctions — one party to the mediation unilaterally imposing its own “self-help” remedy.
And what was the misconduct? The court’s opinion was fuzzy about how it defined the parameters of the misconduct here. On the one hand, it seems like the court found the actual breach of mediation protocol (ignoring of the shuttle-diplomacy approach and barging into the employer’s representatives’ room) was the actual misconduct. Characterizing the employee’s conduct as sabotaging the mediation session, the court said: “Put to one side what he said there.”
However, the court said that if an employer could fire an employee “who barged into his superior’s office in violation of instructions, and said what Benes did, then it was entitled to fire someone who did the same thing during a mediation” (emphasis added). Given the Seventh Circuit’s reliance on its earlier opinion in Hatmaker v. Memorial Medical Center, in which it held that participation in an employer’s purely internal investigation doesn’t insulate an employee from being fired for “making comments” that “demonstrated bad judgment,” including “making frivolous accusations,” it appears that the court was extending its holding. Was it just the breach of mediation protocol? Or was it the words spoken?
But this was mediation. Wait. This didn’t happen in the supervisor’s office, actually. Nor did it occur in the context of an employer’s internal investigation. This took place in mediation; EEOC-arranged voluntary mediation, which, as Francine D. Schlaks, Ph.D., J.D., a federal mediator with significant agency experience, pointed out, “is strictly voluntary. As such, there should be no sanctions at all for misconduct that sabotaged the mediation session. The entire idea of mediation is for people to be able to talk, discuss and negotiate in complete confidentiality, using their own negotiation techniques,” she said.
Sanctions for mediation misconduct. David Wachtel, of Bernabei & Wachtel, a Washington D.C., law firm representing employees, suggested that mediator sanctions in a voluntary mediation could themselves be troubling; mediation should be “a uniquely safe environment.” Both Wachtel and Schlaks agreed that they would draw a line by only imposing sanctions for misconduct during a mediation that involved “violence, realistic threatened violence, and breach of confidentiality.” Additionally, in court-ordered mediation, Schlaks would add to that, “not showing up to a mandatory mediation and, possibly, failure to bring a person with authority to the mediation.”
Should mediators impose sanctions? Wachtel pointed out that in “a voluntary process, the biggest threat to parties is that if the mediation fails, they will both spend money and time in litigation. It shouldn’t take more than that to get cooperation.” Schlaks concurred. “In a voluntary mediation, there should be no sanctions,” she said. “In a court-ordered mediation, perhaps they should be responsible for the mediator’s fees and any court costs.”
Wachtel found the result troubling, given that either “barging in” or “heated language” during a voluntary mediation are part of protected activity. That’s not to say that anyone is suggesting the employee’s behavior in mediation was appropriate. “If Benes had barged into his supervisor’s office, rather than a mediation room, and said, ‘take this job and shove it,’ I would have ruled the same way the Seventh Circuit did,” Wachtel said. “If he disrupted a meeting and ranted for 20 minutes, at anything but a mediation,” he stressed, “I would also have ruled for the defense.”
Stressing the mediation context, Schlaks offered this example: “What about the 23-year-old female who gets overwrought in a joint session and refers to the boss who groped her as ‘that bastard?’” she asked “After this case, is there no longer a clear line saying she can’t be fired for referring to her boss with disrespect?”
What’s good for the goose is good for the gander. What can employers learn from this case?
- Your conduct in mediation could be subject to sanctions as well. Make sure that employer representatives in mediation have familiarity with the facts and settlement authority. Remember that employer actions, including making unrealistically low offers or frivolous accusations, could also be seen as “sabotaging the mediation” under the Seventh Circuit’s approach.
- Fire in haste, repent in leisure. Notably, the employer here took just one hour after the employee’s outburst to fire him. That earned it a trip not only to district court but also to the Seventh Circuit, with the attendant time, expense, and distraction that litigation (and an appeal) entails.
- Resist the temptation to resort to self-help. What might have happened if the employer had allowed the mediator to handle the employee’s misbehavior: to institute a cooling-off period or reschedule the mediation? It’s impossible to know. However, not all courts might be as willing to find that what an employee did during voluntary EEOC mediation of a Title VII charge was not protected activity.
By Pamela Wolf, J.D.
The press for comprehensive immigration reform, including a path to citizenship, is in full swing while Congress is in recess this August. Unions and other groups are taking the fight to the home states of congressional representatives. House Democrats have also made a move calculated to get things moving in the Republican-controlled House.
Unions and partner organizations. Communications Workers of America activists and its partners across the country will be flooding town halls, meeting with their members of Congress, and holding rallies in support of a comprehensive immigration reform bill that includes a path to citizenship for some 11 million undocumented immigrants, according to a CWA release.
This week in Los Angeles, the AFL-CIO’s Maria Elena Durazo joined Mayor Eric Garcetti and more than 100 community organizations and leaders from the faith, labor, LGBT, student, civic engagement, business, and immigrant rights sectors to demand a vote on immigration reform.
In Iowa, more than 50 members of Iowa Citizens for Community Improvement packed a meeting with Representative Tom Latham (R-IA) to share their stories and demand action on the pathway to citizenship.
In Texas, almost 50 immigration reform activists from TexasRITA and other groups gathered at Representative Blake Farenthold’s district office to deliver 10,000 petitions asking him to support immigration reform and a path to citizenship.
Facebook CEO Mark Zuckerberg’s immigration reform group, FWD.us, is also bombarding TV airwaves with a six-figure ad-buy aimed at on-the-fence members of Congress over the recess.
Democratic coalition issues ultimatum. The New Democrat Coalition, a group of 53 moderate pro-growth House Members, sent a letter issuing an ultimatum to House Speaker John Boehner on August 2, telling him that if a comprehensive immigration reform bill with a pathway to citizenship is not introduced by September 30, the leading group of moderates in the House of Representatives will advance on a fix to the nation’s broken immigration system. The letter is signed by 39 coalition members.
After releasing principles for a comprehensive immigration reform package in April, the coalition has maintained its effort to build support for a measure that will create American jobs, lower the deficit, and provide an earned pathway to citizenship for millions of undocumented Americans with a series of summits with leaders in the technology industry and key figures in the immigration reform debate, including Representative Luis Gutierrez (Ill.) from the bipartisan Gang of Seven in the House and Senator Michael Bennet (Colo.) of the Senate Gang of Eight.
In the face of no action on a bipartisan bill, the New Dems are pushing for action from House Republican leadership. “We are frustrated that there was not a bipartisan immigration reform bill introduced prior to the August recess,” they wrote, citing broad bipartisan support for comprehensive immigration reform legislation.
“As New Democrats, we want to convey to Speaker Boehner that it is critical he fulfill his commitment to passing immigration reform legislation that will fix our broken immigration system once and for all,” said New Dem Immigration Task Force Co-Chair Representative Jared Polis. “We agree with the American public that immigration reform must include a pathway to citizenship. We are confident that there is the support for such legislation in the House of Representatives and have let Speaker Boehner know we stand ready to work with his members in a bipartisan fashion to pass comprehensive immigration reform this year. Let’s stop kicking the can down the road.”
A wide gap to bridge. Although the Senate has passed a bipartisan comprehensive immigration reform bill (S. 744), the House has dragged its feet, taking a piece-meal approach. The Migration Policy Institute has issued a side-by-side comparison of the Senate bill and the individual bills introduced in the House. The differences in the way the two Chambers have treated the various components of immigration reform is considerable, with the House having covered much less ground; huge gaps remain.
It will be interesting to see if the pressure in their home states will motivate House Members to return after the August recess more willing to tackle immigration reform on a more comprehensive basis.
Now that the NLRB is back to its full complement of five members after much give and take between the Senate and the White House, here’s a brief rundown on each appointee and the span of their individual terms. On August 1, President Obama also nominated former Member Richard Griffin to serves as General Counsel, as detailed below.
Mark Gaston Pearce, Chairman: Democrat. A founding partner of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux. In 2008, Pearce was appointed by the New York Governor to serve as a Board Member on the New York State Industrial Board of Appeals. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, New York. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University. Pearce initially received a recess appointment set to expire at the end of the Second Session of 111th Congress. On August 27, 2011, President Obama designated Pearce Chairman. Reappointed for a term ending on August 27, 2018.
Nancy Jean Schiffer, Member: Democrat. A former associate general counsel to the AFL-CIO from 2000 to 2012. Prior to working for the AFL-CIO, she was deputy general counsel to the UAW from 1998 to 2000. She had previously worked as associate general counsel for the UAW from 1982 to 1998. Earlier in her career, Schiffer was a staff attorney in the Detroit Regional Office of the National Labor Relations Board and worked as an attorney in private practice. Ms. Schiffer received her B.A. from Michigan State University and her J.D. from the University of Michigan Law School. Appointed for a term of five years expiring December 16, 2014, replacing Craig Becker.
Kent Hirozawa, Member: Democrat. Formerly chief counsel to Chairman Pearce. Before joining the NLRB staff in 2010, Hirozawa was a partner in the New York law firm Gladstein, Reif and Meginniss LLP. Hirozawa previously served as a field attorney for the NLRB from 1984 to 1986. He was a pro se law clerk for the U.S. Court of Appeals for the Second Circuit from 1982 to 1984. He received a B.A. from Yale University and a J.D. from New York University School of Law. Appointed for a term of five years expiring August 27, 2016, replacing Wilma B. Liebman.
Harry I. Johnson, III, Member: Republican. Formerly a partner with Arent Fox LLP, a position he has held since 2010. Previously, Johnson worked at Jones Day as partner from 2006 to 2010 and as an associate from 1994 to 2005. In 2011, he was recognized by The Daily Journal as one of the “Top Labor & Employment Attorneys in California.” Johnson received a B.A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School. Appointed for a term of five years expiring August 27, 2015, replacing Terence Francis Flynn.
Philip A. Miscimarra, Member: Republican. Formerly a partner in the Labor and Employment Group of Morgan Lewis & Bockius LLP, a position he held since 2005. Since 1997, Miscimarra has been a senior fellow at the University of Pennsylvania’s Wharton Business School. Miscimarra worked at Seyfarth Shaw LLP as partner from 1990 to 2005 and associate from 1987 to 1989. Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School. Appointed for a term of five years expiring December 16, 2017, replacing Brian Hayes.
For General Counsel, the nomination of Richard F. Griffin, Jr. has been sent to the Senate. If confirmed, Griffin would serve for a four-year term, replacing embattled Acting General Counsel Lafe Solomon. Griffin saw his nomination to the NLRB withdrawn by the President as part of an eleventh-hour deal with Senate Republicans in the face of their staunch opposition. Griffin, who earned a J.D. from Northeastern University School of Law, was previously general counsel of the International Union of Operating Engineers (IUOE).
A recent lawsuit filed in a federal court in California may cast a shadow over Griffin’s confirmation. The suit charges that Griffin helped to cover up embezzlement at his former union by terminating employees who attempted to expose the alleged embezzlement plot. The complaint, filed by members and officers of Local 501 of the IUOE, alleged numerous violations of the Racketeer Influenced and Corrupt Organizations Act, and names, among others, the union and Griffin, IUOE’s former general counsel, as defendants.
This is not the first time that Griffin’s involvement with the IUOE has drawn scrutiny from lawmakers. Senator Orrin Hatch (R-Utah), a member of the Senate Committee on Health, Education, Labor, and Pensions, sent a letter in July 2012 to Griffin asking about ties to members of union locals convicted of various crimes during his time at the IUOE. In that letter, Hatch asked Griffin for a list of all issues he had worked on while general counsel pertaining to “fraud, embezzlement, or other financial misconduct” by officials at IUOE or its locals.”