We live in a plugged-in age, so that regardless of where we are or what time of day it is we can be called, texted, paged, twitted, or receive emails on our various communications devises. But, what if an employee responds or is otherwise attentive to these devices in conjunction with performing his work. Does it mean that the employee is entitled to compensation for the time if he or she was supposed on a lunch break? That was the question raised by a group of line technicians in Brand v. Comcast Corp. In Brand, the court agreed with Comcast that it was not enough that the line technicians monitored their communications during what was supposed to be their lunch breaks.
Lunch break work. In contesting the technicians claim that they were entitled to overtime pay for the time spent working during lunch breaks, Comcast argued that there was no evidence it had either actual or constructive knowledge the line technicians were working through lunch without pay. Here, the court determined that the line technicians failed to submit sufficient evidence to create a genuine issue of material fact with respect to Comcast’s knowledge regarding unpaid lunch breaks and to allow a reasonable inference regarding the extent of that unpaid time.
The court noted that in the absence of evidence of actual knowledge, the question became whether the technicians’ managers or supervisors “had the opportunity through reasonable diligence to acquire knowledge” that the employees were working through lunch without pay. The technicians asserted that Comcast required them to monitor work devices during lunch breaks, and that this policy demonstrated that it had actual knowledge that they were working through lunch without pay.
However, the court determined that the facts cited by the technicians did not support an assertion that Comcast required them to continually and actively monitor their devices while on break. The court found no smoking gun. Although the technicians sometimes received outage notices via text, email, phone, or radio during lunch, there was no evidence that a manager ever told them they had to watch their computer communications during lunch. Further, there was no blanket policy requiring the technicians to actively monitor devices during lunch break, and to respond immediately to communications regarding outages. Accordingly, the technicians failed to establish that Comcast knew they were working through lunch without pay simply because it knew they occasionally received outage notices during their meal breaks.
Constructive knowledge. With respect to whether Comcast had constructive knowledge of their unpaid overtime, the technicians pointed to a “variety of complaints” they characterized as being about unpaid lunch breaks. However, the court pointed out that none of these anonymous complaints came in to a service manager, the Department of Labor, human resources or the Comcast Helpline. Moreover, none of the complaints involved claims that line technicians were working through lunch or that managers or supervisors knew or should have known that these specific plaintiffs were working through lunch without pay. Thus, the court found that no reasonable jury could conclude Comcast had actual or constructive knowledge that the technicians were working through lunch without pay.
By Joy P. Waltemath, J.D.
This month, the Utah Supreme Court looked at the collision between self-defense laws protecting individuals’ rights to defend themselves from “serious threats of imminent harm” and a Wal-Mart “Asset Protection” policy requiring, in the event a shoplifting suspect has a weapon or threatens to use a weapon, all its employees to “disengage from the situation, withdraw to a safe position, and contact law enforcement.” Answering a certified question, the state high court found the right to self-defense qualifies as a public policy exception to the at-will employment doctrine, and it revived the public policy wrongful discharge claims of five Wal-Mart employees who were terminated under the asset protection policy.
The issue is hardly unique to employers in Utah. As of August 2014, 33 states had some form of “no duty to retreat” laws, according to an ABA National Task Force on Stand Your Ground Laws. Many of those laws say there is no duty to retreat from any place where one is lawfully present, although some of the laws are not worded so broadly. So, what happens when these expressed rights of individuals to protect themselves conflict with an employer’s no-escalation workplace violence or shoplifting policy?
Five employees fired. Two incidents gave rise to the Utah case, both involving employees whose Wal-Mart jobs were to investigate, document, and prevent theft. In the first, after two employees confronted a shoplifter and grabbed her arms, she struggled, pulled out a small knife, and shouted she was going to stab the employees. Instead of releasing her, the employees held on while a customer disarmed her. The employees were fired for violating the disengagement policy. In the second, three employees were in a store’s asset protection office where a customer who had been attempting to steal a laptop had been brought. Although exactly what transpired was disputed, the parties agreed the customer had removed the laptop from his pants when he said “I have something I am not supposed to have”—which turned out to be a gun. After a struggle, the employees managed to disarm the customer. All three also were fired for violating the disengagement policy.
Certified question. After the employees sued, the federal district court certified to the Utah Supreme Court a question regarding the employees’ claims for wrongful termination in violation of public policy: Whether self-defense constituted a substantial public policy exception to the state’s at-will employment doctrine. Importantly, for purposes of certifying the question, the federal district court asked the Utah Supreme Court to assume that the employees were unable to safely disengage from the incidents.
Sources of public policy. Utah law reflected a clear and substantial public policy favoring the right of self-defense that included the workplace, according to the majority. The right to self-defense appears twice in the Utah Constitution: Article I, Section 1 unequivocally recognizes the right of all men “to enjoy and defend their lives and liberties,” and Section 6 references the individual right to keep and bear arms “for security and defense of self, family, others, property, or the state.” Notably, the court looked beyond the constitutional provisions in question (which did not directly regulate employment) to examine the motivating policy behind them, as it could in addressing the public policy exception, the court explained.
“Stand your ground.” The Utah code also supported the right to self-defense as an exception to the employment at-will doctrine. Utah has been a “Stand Your Ground” state since 1994, and even if that law were repealed, it would not limit the state constitutional right to self-defense. Moreover, the statutory language was not limited—it provides there is generally no duty to retreat if the person is located in a place where he or she has lawfully entered or remained—which undercut Wal-Mart’s argument that stand your ground was not intended to cover workplace-based scenarios. Looking at the constitution, statutes, and common law, the court found the right of self-defense plainly defined by authoritative sources of Utah public policy—but that policy explicitly recognized other compelling circumstances in which a person may have a duty to retreat.
Public importance, countervailing interest. From there, it was relatively simple for the court to find the policy was of broad public importance. So the court turned to whether the right outweighed the employer’s countervailing interest in managing and regulating its workforce. Although agreeing with Wal-Mart that the state had a strong public policy favoring “de-escalation and non-confrontation policies,” those interests were still outweighed by the employee’s right to self-defense—at least in the “narrow circumstances” presented here, where the employees were “unable to safely disengage” from a threat of violence. The court expressly limited its decision to circumstances in which an employee faces an imminent threat of serious bodily harm and has no opportunity to withdraw.
Policy potentially consistent with public policy. That said, Wal-Mart’s policy here could be consistent with the public policy exception, the court explained. The policy allows employees to “defend themselves or others to the extent necessary to disengage the Suspect” and withdraw. This language implied that an employee who did not have such an opportunity to disengage and withdraw would be entitled to act in self-defense. But ‘nothing in our decision today prohibits employers from requiring their employees to disengage from violent situations when they have such an opportunity,” concluded the majority.
Dissent. Justice Lee believed the majority framed the question improperly in assuming that the employees were unable to safely disengage. Rather, Lee argued, the question was the enforceability of an arrangement in which the employer ” has the final say in the event of disagreement as to whether the employee was engaged in proper self-defense or prohibited escalation, and a concomitant right to terminate the employee if it decides that the policy was violated.”
Employer lessons. The court’s analysis was not limited to Utah law, and it specifically discussed case law Wal-Mart raised from Pennsylvania, Maryland, North Carolina, and federal district courts in Michigan and California, which declined to recognize a self-defense exception to at-will employment. Some of those cases the court distinguished because the employees used force in retaliation or in circumstances where it would have been safe to withdraw and contact law enforcement—specifically not what the certified question here required the court to assume. Instead, the court favorably cited the rationale of the Supreme Court of West Virginia—which limited the public policy exception to instances where an employee responds to “lethal imminent danger.” This analysis should help employers who attempt to carefully craft no-escalation policies, taking into account the vagaries of state law, which will pass muster even in the event of new public policy exceptions based on self-defense.
The Utah Supreme Court case is Ray v. Wal-Mart Stores, Inc., September 17, 2015.
Senate HELP Committee Chairman Lamar Alexander (R-Tenn.) grilled a DOL witness at a Senate subcommittee hearing about why OSHA investigators are being instructed to ask questions to determine whether a franchisee and franchisor are joint employers instead of focusing on health and safety. The clear answer he got underscored the fact that someone must be held accountable for worker health and safety.
At a September 23 hearing held by the Senate Homeland Security and Government Affairs Subcommittee on Regulatory Affairs and Federal Management, Alexander decried what he called the NLRB’s overturning of three decades of labor policies to create a new standard for a “joint employer” that says merely “indirect control” or even the potential to control working conditions will now make two separate employers joint employers. He was talking about the Board’s controversial decision last month in Browning Ferris Industries of California, Inc. dba BFI Newby Island Recyclery, which loosened the joint employer standard.
Leaked memo. Alexander pointed out that the day before the NLRB issued its Browning Ferris decision, Politico reported that OSHA officials were asking regional directors to use the same new standard for joint employment when looking at violations at franchises. “It looks like a coordinated effort to change the law to me,” Alexander said.
The Senator was referring to a memo internally circulated at OSHA, which pondered whether “for purposes of the OSH Act, a joint employment relationship can be found between the franchisor (corporate entity) and the franchisee so that both entities are liable as employers under the OSH Act.”
“If you’re going to change the OSHA law, which goes back to 1970, to say that instead of looking at health and safety, you suddenly want to have your investigators looking at a test for whether a franchisee and a franchisor are joint employers, don’t you think that ought to be a change in the law that Congress makes or at least a rule or a regulation?”
Alexander queried, “Since when did OSHA get in the business of trying to figure out if a franchisee and franchisor are joint employers or not? Why does OSHA care about that? Why isn’t OSHA interested in health and safety?”
Who’s responsible? Mary Beth Maxwell, Principal Deputy Assistant Secretary and head of the Office of the Assistant Secretary for Policy at the DOL, gave a clear answer—investigators need to know who’s responsible. She also noted that there is more than a decade of case law under the OSH Act that has recognized the concept of applicable joint employment. She also explained that investigators must look at all different types of work arrangements, and there are elements of joint employment may be implicated.
As to the memo Alexander referenced, Maxwell said it was not guidance and it was just a draft. Rather it included a draft list of questions that teaches investigators what they should be asking about.
When pressed by Alexander as to why OSHA, which deals with health and safety, should be asking such questions, Maxwell said that while the focus is on health and safety, investigators need to better understand who is responsible for the health and safety of the workers.
It’s one of those fact situations that seem hard to comprehend, but an OSHA ALJ found that an operator of a western theme park failed to take adequate steps to prevent the use of live ammunition at its reenactment of an Old West-style gunfight.
Lucky enough to have escaped death, a senior cowboy employed by the park was seriously injured while performing in a recurring Sundance Kid show. A doctor found a “bullet hole through [the victim’s] left frontal bone,” a “bullet tract extending from the left frontal scalp in a parasagittal pan through the frontal, parietal, and occipital lobes,” and a bullet fragment lodged “above [the victim’s] tentorium cerebelli in the midline against the calvaria.” “Put simply, [he] had been shot in the head…,” the ALJ noted.
How did this happen? Incredibly, show performers were permitted to bring their own guns capable of firing live rounds and their own ammunition (blanks or otherwise) to their performances. Tragically, a live round found its way into a performer’s gun, though a later police investigation found no intentional acts. Since the incident, the operator changed its policy to prohibit the use of outside ammunition and to permit only blank-firing guns.
Finding a violation of the OSH Act’s General Duty clause, the ALJ assessed a penalty of $1,250. Though the Secretary of Labor initially recommended a gravity-based penalty of $2,500.00, which reflected an incident characterization of high severity and low probability, the amount was reduced by 50% due to operator’s size and lack of violation history.
By Lorene D. Park
In the wake of heartbreaking incidents of workplace violence that make national headlines, it is natural for employers to reevaluate workplace violence policies to try to avoid similar incidents. When it comes to enforcement, and firing employees for violating any policy, employers will be concerned about potential liability if the employee sues for discrimination or other claims. But having viewed cases where threats of violence played a key role, I believe “zero tolerance” and consistent enforcement is the best way to go. When it comes to firing someone for threatening coworkers or supervisors, courts generally side with employers. For example:
- The Ninth Circuit recently affirmed summary judgment for an employer on an employee’s disability discrimination claim under Oregon law because, even assuming he had major depressive disorder, he could not show he was “qualified” at the time he was fired because he repeatedly threatened to kill coworkers. Though he claimed to have been bullied at work, the appeals court noted that an “essential function of almost every job is the ability to appropriately handle stress and interact with others.”
- Denying enforcement of a National Labor Relations Board order, the Eighth Circuit found that an employee’s termination under a zero tolerance workplace violence policy, after he made a “cut throat” gesture toward a coworker, did not constitute a violation of the NLRA because the discharge did not result from the employee’s participation in a strike.
- A highway engineer’s Title VII retaliation suit was dismissed after a federal court in Indiana found that he failed to show he was meeting his employer’s legitimate expectations at the time he was fired. He had violated the workplace violence policy in angrily pointing a finger at his manager in a threatening manner while stating he “hated [his] guts” and would “never lay eyes on [him] again.” His affidavit explaining his version of events failed to dispute the manager’s sincere feelings of being threatened.
- In a recent NLRB ruling, a three-member panel held that an employer did not violate the NLRA by firing an employee who threatened a coworker (and member of the union executive board). Under the employer’s work rules, threatening an employee is a “major offense” for which employees are subject to discharge without warning.
As these cases indicate, so long as an employer fires an employee because he or she was violent or has threatened violence, and not for an unlawful reason such as discrimination (using fear of violence as a mere pretext), the employer is unlikely to face liability. Moreover, in cases where employers don’t stop intimidation, violence, or threats, they significantly increase their chances of liability for a hostile work environment or other claims. In one case, the Eighth Circuit reversed summary judgment against an American-born woman’s Title VII claim concerning a group of Somali-born immigrants who were her subordinates and who engaged in name-calling, used threatening language and stance, threw files, and said “American women were disrespectful because they were not beaten enough.” Though the hostility came from subordinates, it was tolerated by higher management, which ignored her complaints and denied her authority to fire an offending employee. That was enough to support her hostile work environment claim.
Prevention comes first. When it comes to best practices, having a zero-tolerance policy prohibiting violence and threats of violence is not enough. Prevention comes first: supervisors should be trained to recognize and report potentially violent coworkers. Individuals do not usually just “snap,” and there are often signs which, if recognized, could lead to preventative action. Some signs could include:
- Increased use of alcohol or drugs and unexplained absences
- Decrease in attention to appearance and hygiene
- Depression, mood swings, suicidal comments, or talk of problems at home
- Unsolicited comments about firearms or other weapons
- Signs of domestic abuse
- Verbal threats or acts of aggression at work, including menacing gestures, intimidation, disorderly conduct, and aggressive “horseplay”
That is not to say that everyone who has one or more of these signs will become violent and certainly some signs are bigger red flags than others. The point is simply to train managers and employees to recognize warning signs and to report them, and train all staff on steps to take when faced with violence or threats of violence. OSHA’s website on violence provides valuable information on risk factors, prevention programs, training, and enforcement. It also issued a fact sheet that provides helpful suggestions for addressing workplace violence, and recently issued updated guidelines tailored for healthcare and social service workers. In addition, the Department of Homeland Security has issued a booklet addressing shooter situations in particular.
“Zero” tolerance should apply to everyone. Employers must enforce policies consistently. For example, if an employer disciplines only certain individuals in categories protected by Title VII, the ADA or other anti-discrimination laws, then there is greater potential for liability. For example, a Louisiana rehabilitation facility’s motion for summary judgment was denied as to the race discrimination claim of an African-American employee based on evidence that she was fired for a physical altercation with a resident while a similarly situated Caucasian worker who struck a resident was not.
With respect to the ADA, an EEOC enforcement guidance concerning individuals with psychiatric disabilities explains that “nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence” and an employer may discipline a disabled individual for violating a workplace standard, even if the misconduct resulted from a disability, so long “it would impose the same discipline on an employee without a disability.”
Consistent enforcement is also at issue when an employer tolerates violence or threats lodged only at a protected group. Recently, a federal court in Oregon found triable issues of fact on an employee’s race-based hostile work environment claim where unwelcome physical “horse play” was directed only at African-Americans. The incidents included being slapped in the back of the head, pinched in the ribs and struck on the shoulder. There was also at least one comment by a coworker that African-American employees need to be “slapped upside the head.”
A final word. When it comes to adopting and enforcing a zero-tolerance violence policy, there are considerations beyond simply providing a safe work environment and avoiding liability. One case I found appalling (and I’m guessing a jury will too) comes to mind: an employee was repeatedly threatened by a coworker, who made numerous threats of violence at the employee and others, smashed a chair, and brought ammunition to the office, which he displayed on his desk after having inscribed the employee’s initials on one of the bullets. The employee notified HR of the bullet incident but was simply told he was not in danger. Though the coworker was fired after the employee contacted police, the employee soon learned the coworker was coming back. Assuming these allegations are true, the employee very understandably began missing work due to extreme anxiety. After he was fired for unexcused absences despite providing medical documentation, he filed FMLA retaliation and interference claims. Unsurprisingly, a federal district court in New York found the claims plausible. This employee’s extreme anxiety is a good example of the damage that can be done not just by violence but by repeated threats. It is not okay to allow this type of behavior to go on.