World's Hottest Workplace Safety Song

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Blaming the Trial Lawyers

This  syndicated "Mallard Fillmore" cartoon ran in newspapers nationally. The incident referred to is one where an employee of SuperAmerica convenience stores in Minnesota grabbed a robber whom the employee believed was attacking the cashier. SA fired him because his actions in fighting off the robber violated SA's policies. These situations do arise from time to time and they are difficult for students to understand. Under the "at-will-employment doctrine," employers may fire employees for cause, or for no reason at all, or even for a reason that most people would consider to be a bad reason. Many states have carved out narrow "public policy" exceptions to this rule to protect employees who are engaging in conduct that should be encouraged, rather than discouraged, by society.

I don't have any idea where this employee's claim will end up under Minnesota state law. However, one thing is clear. In order to get the justice that this employee deserves, he will need to get the assistance of a trial lawyer. The cartoon above erroneously attributes the effects of the at-will-employment doctrine to the work of trial lawyers. In fact, trial lawyers would be the ones representing fired employees who are making claims of wrongful discharge against employers who fire them for bad reasons. The effects of the at-will-employment doctrine are the result of corporate lawyers representing large corporations and wealthy employers who prefer to be free from any obligations to employees. At-will-employment promotes reliance on free-market forces in the labor market - forces which result in periodic injustices. It is the trial lawyers who seek justice for the fired employees. This cartoon suffers from a common disability: the "knee-jerk reactionary, blame the trial lawyers for everything" syndrome. I guess it is an example of just one more "error of law" about which students will have to be educated.

Law Music Video: Chemical Workers' Song

Industrial workers may be at risk for serious health injuries due to long term exposure to dangerous chemicals.  The workers know this inherently, yet need to make a living. What is the social response through law?

Pick your favorite version:



A Capella lads from UConn:




















The dance version:

Employment Discrimination Based on Sexual Orientation

I recently came across an article at Think Progress describing an employment discrimination case pending before the Seventh Circuit . Click here for: The Most Important Gay Rights Case Since Marriage Equality Was Won. I found it to be a very readable description of the state of the law on employment discrimination based on sexual orientation that our students may be able to digest.

I find students to be quite interested in this topic.  When I do an exercise asking them to write a modern Bill of Rights, protection against discrimination in all forms based on sexual orientation or gender identity usually appear in their list of most cherished liberties. But getting into the details of the law in this area often involves peeling back more layers of the onion than would be prudent or understandable in a basic legal Environment course.  This article linked above can help.

A brief summary of the Hively case:

ADA Chronicles: Common Sense Saves Many Dollars

Click on the headline to read the Washington Post story titled, "A diabetic gets fired over a $1.69 (plus tax) drink and Dollar General must now pay her $277,656."

And some people question whether managers should have to take courses in law?  It would have been cost effective for Dollar General to pay the tuition for that district manager to take a Legal Environment course. Smart business judgment avoids costly court judgments.

EEOC press release.

Diabetes Discrimination:

Why Don't More Companies Offer Flexible Working Arrangements?

Ask my UConn colleague, Robert Bird. Click here to read about his upcoming articles on this topic. Yes, business can have a positive affect on society - but it has to be a conscious choice.

There seems to be agreement.  In the US:



In the UK:



In Australia:

Sorting Out Jury Verdicts

Students are used to popular cultural representations of jury verdicts as "simple" pronouncements of guilt of innocence.  However, as factfinders, the jury's duty in a civil case can be quite complex.

A jury in California recently ruled against Ellen Pao in her highly publicized sex discrimination lawsuit against Kleiner Perkins,a powerful silicon valley venture capital firm. The case is certainly interesting as a teaching tool on a number of fronts.  But I am particularly interested in bringing to you a link to the jury verdict form from the case, courtesy of the New York Times.  Students viewing the verdict form sent into the deliberation room will be surprised to learn that it contains 7 pages of detailed questions for the jury to answer.  The jury answers the fact-specific questions and, from their answers, the court (judge) fashions the judgment. There are also 14 pages of written instructions. Release of the verdict form sheds light on a part of trial procedure about which our students are mostly in the dark

It's not exactly as simple as "We find for the defendant."

News report on Pao verdict:

FedEx Ground Drivers: Employees or Independent Contractors?

Companies that want a reliable workforce but don't want the expense and regulation inherent in an employer-employee relationship have been tuning in greater numbers to independent contractors. However, the status of a worker as an employee or independent contractor is not determined by the label slapped on the relationship by the employer or even the employer's chosen methods of compensation. The status is determined by how the parties actually interact.  The greater the degree of control maintained by the hiring party of the methods and manner of the work performance, the more likely that the worker will be deemed by law to be an employee.  This can be problematic for employers who want the payroll and regulatory flexibility of an independent contractor relationship but who also want to control the details of how and when the work is performed.

These issues should be front and center in the public view over the next couple of years as multiple lawsuits against FedEx Ground proceed through the system.  Former workers are suing for overtime pay and employer payroll contributions that were not made for many years.

See related posts here and here.

Legal advice from the Zellmer Law Group:

16 Tons

Folks in tuxedos snap their fingers to the plight of the working man.

The Flood Gates Have Opened

The recent Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. is described in this New Yorker article:

Hobby Lobby, a closely held corporation, is a secular, for-profit business, but the Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, they could deny employer-paid insurance coverage for them. Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ”

Justice Alito, who pledged such fidelity to stare decisis during his confirmation hearings, apparently has no clue how the doctrine works.

The track record of judicial decisions since the Hobby Lobby decision show that Justice Ginsburg was likely right. A U.S. District Court judge in Utah has ruled that a leader of a religious sect was not required to answer U.S. Department of Labor questions about potential child labor violations because to do so would place a "substantial burden" on his "sincere" religious beliefs against publicly disclosing church business.  

It's hard to imagine what would not be protected at this point.  Remember the furor over the Catholic Church failing to turn in pedophile priests?  Now they can simply claim to do so would be a substantial burden. In states where teachers are mandated reporters of suspected child abuse, can religious school teachers claim an exemption from reporting severe physical abuse because of a sincere religious belief in corporal punishment? 

Put on your life jackets, folks because the floodgates are open. 

Employment -at-Will on Crack!

There have been plenty of posts in this blog with examples of dodgy firings. Pretty much all of them are allowed under the employment-at-will doctrine. But here is an article with the accurately descriptive headline, "A Woman Told Her Boss About A Devastating Cancer Diagnosis.He Responded By Firing Her." Read it for yourself and fashion your lesson plan on employment law, ethics, employer responsibility, employee vulnerability, ADA (and when it does not apply) or humanity as the case may be.

This is not an isolated case:

Can You Be Canned For Trying to Stay Alive? Shared by Konrad S. Lee

Thanks goes out to Konrad S. Lee, Associate Professor in the Practice of Law, Ethics and Management at Jon M. Huntsman School of Business at Utah State University for submitted this resource for the discussion of public policy exceptions to the employment-at-will doctrine.

Under the common law doctrine of employment-at-will, in the absence of an employment contract stating otherwise, an employee may be dismissed at any time, with cause, for no cause and even in many cases for a cause that seems unfair. here are certain exceptions to the rule.  For instance, there are statutory exceptions for discriminatory discharges based on protected characteristics or retaliation for whistle-blowing, The NLRA prevents discharges from employment for union activities.  Most states also recognize some level of common law exceptions.  the most common being a public policy exception.  That is, when the employment discharge interferes with or discourages some activity that is otherwise beneficial for society, the discharge may be deemed wrongful.

With this background comes the incident described in this news report from KSL.com.

A video posted to YouTube showed (ex WalMart employee Gabriel) Stewart, then an assistant manager, and several "asset protection" employees inside a small room with a man suspected of shoplifting. The suspect, at one point, pulled out a handgun, prompting at least two workers to restrain him, and take away the weapon. 

The workers were fired by WalMart following the incident and have filed suit claimimg wrongful termination. 

"Our number one concern is always the safety of our customers and associates," said Randy Hargrove, Walmart corporate spokesman. "Our policy is for associates to disengage, if a suspect has a weapon. . . ."We don't want to escalate a dangerous situation further," said Hargrove.  

So WalMart would have their employees "disengage" with an armed and angry suspect and face likely death rather than defend themselves by taking the instinctive action to overpower the gunman. Watch the video below and decide for yourself. Should you be fired for trying to stay alive?  

Is it too cynical to speculate whether WalMart carried "Dead Peasant" policies on these associates?

Video news report:

Raw surveillance video:

UPS Pink Slips Likely to Result in Extra Special Deliveries

According to the Huffington Post, UPS has fired hundreds of workers who staged a solidarity protest for a fired worker. The really troubling part of this story is:

Twenty of the workers were notified of their dismissal on Monday. The remaining 230 were told they would be fired as soon as replacements are trained.

Is this a sustainable model for continuing business? If you were worried about the quality of package handling before this debacle, imagine your packages now being at the mercy of 230 lame-duck, ticked-off employees with nothing to lose by taking their frustrations out on your packages in order to get back at the company.  I thought managers were supposed to be rational actors in an effort to limit liability exposure.  UPS just lit a neon sign that says, "don't use our services until we train a bunch of new employees or your packages are likely to be stomped into slivers."

UPS package handling without the extra added incentive of being fired:

"I Quit!" Through Interpretive Dance Shared by Dawn Swink

ALSB member Dawn Swink from the University of Saint Thomas sent in the link for this video.  What will the employees boss think?  Or, more appropriately, what will the ex-employees prospective bosses think? Social Media is powerful.  Not always in a positive way.

Click here to go the video and story at Find Law.

Fired For Observing Patriotic Flag Protocol

Federal Law states:

The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning. 

4 U.S.C. section 8.

Rick Heilman, a 22 year Navy veteran, noticed the National flag flying outside his work place was tattered.  He asked his manager if he could take the flag down until a replacement was obtained.  He was twice told, "no."  After thinking about it over the weekend, he returned to work on Monday and took down the flag. Whereupon, he was fired for insubordination.

According to the news report:

Yearwood Equipment Company’s management would not speak on camera, but did reiterate that Heilman was not fired for replacing the flag. 

Right! He was NOT fired for replacing the flag. He was fired for replacing the flag after his boss told him not to, even though replacing the flag was the right thing to do.

Is it tuh-MAY-toe or toe-MAH-toe?

Of course, the employment-at-will doctrine protects the employer, allowing employee dismissal for good reason, for no reason and even for a bad reason.  Some states recognize public policy exceptions to employment at will for employees who are fired for engaging in an important public activity. North Carolina law ought to recognize that displaying proper respect for the national flag trumps the superficial bruising of a boss's ego.

Your Kid Has a Snow Day? You're Fired!

The article here recounts this story. The thrust of the article is that the Family and Medical Leave Act (FMLA) needs to be amended to protect workers in this situation.  The article doesn't even mention the employment-at-will doctrine which justifies employee dismissals for any reason or no reason.  The FMLA only applies to employers with 50 or more employees. EAW applies to everyone. The point of advocacy here should be to advocate for emergency child care as an important public obligation within the exceptions to the EAW doctrine.

FMLA basics:



US one of the worst in the developed world when it comes to supporting pregnant women:

Casualties of the Gridiron

There's been  a growing awareness of the long term physical effects of playing football, especially at the highest levels in college and the pros. Long time player Brett Favre has recently disclosed his creeping memory loss and opined that had he a son, Favre would "be leery" of letting him play football.

GC magazine is running a series entitled "Casualties of the Gridiron." The video below features former NFL quarterback Ray Lucas.  Lucas suffered ruptured discs and nerve damage as a player and lives in pain. He delayed necessary back surgery for years because he had no health insurance after he retired. he sunk into despair before finally being able to turn things around with help.



The question that first comes to mind for me is, "Why isn't this covered by workers' compensation?"  These pro athletes may be paid millions, but they are still employees covered by state workers' comp laws as far as I know.  Just last month, California made headlines by passing legislation limiting worker's comp claims by pro athletes.  By implication, before that legislation, there were no limitations.  ESPN has even referred to workers comp as a "threat" to the NFL.This week, five former members of the Kansas City Chiefs sued the team over head injuries suffered over the course of their careers. According to their lawyer, the lawsuit is not barred by worker's comp laws because of an exception for injuries incurred over an extended period of time.

Former player, Deion Sanders, who famously criticized players filing suit over not being warned about the effect of concussions, has filed a comp claim for his football injuries.

So, what gives? Does anyone know why Ray Lucas couldn't get the surgery he needed under worker's comp laws?

Employment at Will in NC

Click on the image below to access a video explanation of employment at will.

What Duty Does a University Owe its Student Interns?

Are we sending our undergraduate students, especially female students, into a lion's den?

Many business programs either require or encourage students to seek internships as part of their undergraduate education.  These internships are typically unpaid.  As recently confirmed by a US District Court ruling, unpaid interns are not employees and, therefore, are not covered by the laws protecting employees in the workplace. The intern in that case, a Syracuse University student, was placed in an unpaid internship at the offices of a satellite television provider. She claimed to have been sexually harassed by an executive there. While our students are typical placed in professional business settings, these settings are not immune from incidents  of sexual harassment - incidents from which our students have little legal recourse.

It would seem that universities, at the minimum, should be charged with an obligation to advise students of this lack of protection and to monitor their workplaces closely - far more closely I am afraid than has been the norm to date. Perhaps readers can share suggestions in the comments section of this post.

 

The Working-Person and the Law

I have previously posted these videos below in different contexts.  But in honor of Labor Day, I thought they could help in contemplation of the relationship between the working-person and the law.