Archive for the 'Employment' Category

Was the Former FBI Deputy Director McCabe Legally Terminated?

FBI Deputy Director McCabe announced his resignation on January 29, 2018. He went on paid leave until March 18, when he would officially retire. Attorney General Sessions terminated McCabe on March 16, thereby removing McCabe’s pension.

Sessions said he was following the recommendation of the FBI’s Office of Professional Responsibility, which claimed “Mr. McCabe had made an unauthorized disclosure to the news media and lacked candor – including under oath – on multiple occasions.” The report that Sessions cited has not been publicly released.

There are several factors that cloud McCabe’s termination. First, Mr. Trump has constantly taunted McCabe on Twitter, before his resignation and after his termination. McCabe has solid evidence if he wants to sue and argue that his termination was the result of a personal grudge instead of an objective investigation.

Second, McCabe was a witness who observed James Comey documenting his meetings with Mr. Trump. The Special Counsel could prosecute McCabe’s termination as witness tampering and intimidation. Finally, McCabe had approved an investigation into Jeff Sessions for perjury when he testified to Congress last year. If true, McCabe’s termination could be retaliation by the Attorney General.

mccabeEmployment Law Would Support McCabe’s Claims

Employment in the United States is usually at-will. This means that either employer or the employee can end the relationship at any time for any reason. The exception is if the employer terminates the employee for an illegal reason, such as a breach of contract or racial discrimination.

However, many government positions, especially positions that directly report to elected offices, do not serve at-will. Government positions are protected to ensure that political bias does not affect operations of government that should be non-partisan, such as military defense or criminal investigations. They can only be terminated for good cause.

Good cause” is essentially the opposite of at-will employment. At-will employment means that an employee can be fired for any reason except for an illegal reason. Good cause means the employer can only terminate the employee if the employer has a legal reason for doing so.

The Justice Department would claim that it had good cause for terminating McCabe – leaking classified information to the media and then denying it while under oath. However, McCabe is denying the allegations completely. Since no one has seen the report by the Office of Professional Responsibility, Sessions may be on thin ice with this decision. If McCabe sues and he is right, then McCabe’s termination would be invalidated and his pension restored.

McCabe would most likely argue that the allegations against him were a pretext. A pretext is a false reason given to fire an employee instead of the actual reason, because the actual justification is illegal.

McCabe could argue in court that he was really fired for all the reasons mentioned above: a President’s personal grudge against him, an attempt at witness tampering, and retaliation by an Attorney General who was afraid of the investigation that his target had authorized against him. Given that there was only two days left before McCabe’s resignation, the Trump Administration’s decision to terminate McCabe is legally very risky.

What Do Employees Get If They Win Their Lawsuit?

Although McCabe is a very high profile case, he is not unusual. According to the EEOC, 41,097 wrongful termination cases based on retaliation were filed in 2017. The average settlement is about $40,000, with 10% of settlements resulting in a million dollars for the employee. About 67% of wrongful termination trials in court are won by the employee.

Notably, very few cases result in the employee returning to work. First, employees are required to mitigate damages – they cannot do nothing and then demand back pay when they could have found another job. Second, a wrongful termination often means bad blood for both sides. Few people want the drama and potential hostility that may come after a lawsuit.

Finally, many states may require the employee to choose between a large settlement and returning to the original job. Most employers would replace the terminated employee right away. It would be unjust to fire the replacement just so that that wrongful terminated employee could return.

New California Law Requires Posting of Transgender Rights in the Workplace and More

The new year has seen quite a package of laws supporting transgender employment rights in the work place come into force in California. This is crucially important because the protected status of gender identity under Title VII has gone from a cause championed by the Equal Employment Opportunity Commission (EEOC) for nearly a decade, growing as a right within the courts, to seeing support for the protection from the White House and its executive agencies slip away.

The courts, and the EEOC as well to a degree, still show a trend towards supporting these rights. However, their protection at a federal level has slipped in certainty.

This slip in federal protection means that it has fallen on the states to codify the sort of protection offered based on gender identity and make it known that that protection is available in their state.

In California, the last year or so has seen a flurry of activity on this front–most recently seeing a package of laws take effect on January 1st of this year. Let’s look at the new protections California has extended to its transgender citizens.

transgenderSB 396–Ensuring Transgender People Know Their Rights

The first of the two substantial changes to take effect in January was SB 396–requiring employers to post transgender rights explanations in the workplace. It also requires employers with 50 or more employees to include an understanding of gender identity, gender expression, and sexual orientation in their pre-existing mandatory sexual harassment prevention training.

The poster, titled “Transgender Rights in the Workplace,” covers several topics including defining terms under the law and explaining the rights associated with gender identity. The poster itself can be viewed here.

The law requires all employers to put the posters up in prominent positions.  The poster itself covers some important legal elements to understanding both your rights as a transgender person and the type of actions that will get a coworker and/or employer in hot water. First, it makes it clear that gender identity and gender expression are protected characteristics under California law.

This means that any discrimination in hiring or employment actions (as well as housing offerings) is a violation of the law. This basically includes any adverse employment action–refusing to hire, refusing to promote, firing, or even intentionally giving less favorable duties–is illegal if it is done based on stereotypes about gender, gender identity, etc.

This even includes situations where an employer perceives somebody as transgender or gender nonconforming and acts on this belief, even if the person if not in fact transgender. Transgender is defined under California law as a person whose gender identity differs from the sex assigned to them at birth. Gender expression, on the other hand, is defined as gender related appearance and behavior not stereotypically associated with a person’s sex assigned at birth.

The poster also makes clear what is and isn’t allowed on the part of an employer. Interviewers and hiring employers can ask about the usual references and employment history that you would expect in the hiring process.

However, leading questions seeking gender identity are out. The includes but is not limited to “marital status, spouse’s name, or relation of household members to one another. They are also not allowed to ask about a person’s body or whether they have already or intend to get reassignment or other surgery related to gender identity.

There some additional considerations under the law for dress codes, bathrooms, showers, and locker room facilities. Under California law, employers can only enforce dress codes in a non-discriminatory manner. This means dress codes in general are allowed but restrictions on dress and grooming must be applied in a manner that allows transgender or gender non-conforming employees to dress “in accordance with their gender identity and gender expression.”

Any employer must allow transgender or gender non-conforming people to use the restroom or locker room associated with their gender identity or expression. Where possible, an employer must provide a unisex single stall bathroom.

However, they cannot force and employee to use such a bathroom as opposed to the bathroom of their gender identity. It is illegal to require or push a transgender employee to use such a bathroom either by policy or through harassment. In addition to this, California law requires that any single-user bathrooms be identified as unisex unless it has a special exemption from elsewhere in the law.

AB 1556–Changing the Language of Law

In addition to requiring employers to post these new legal protections for transgender and gender non-conforming employees, California has also updated the language of the Fair Employment and Housing Act (the law which contains California’s Title VII equivalent) to use gender non-binary language.

AB 1556 replaced all instances of “her,” “she,” and other similar terms from gender discrimination and other elements of FEHA. This was done to make it clear that gender identity and gender non-conformance is indeed protected under the Act.

Transgender Rights are Largely in the Hands of the States

The current administration and its agencies have, to put it lightly, not made transgender rights their priority. A more critical view would be that they have actively rolled back the clock on gender identity rights built up over the last decade.

While the courts and the EEOC generally support the notion of gender identity as protected under sexual discrimination laws, it is generally in the hands of the states to pass any genuine law on the issue given the positions of the White House and the current Congress on the issue. This is especially true when comes to classifying gender identity as its own protected characteristic as opposed to bundling it in with sex discrimination.

It’s incredibly important that states take steps like those California has taken here. Hate crimes against transgender persons have rose in numbers in both 2016 and 2017–many of these incidents ending in fatal violence. Gender identity is something deserving of its own protected class. For now, state laws like these are the most likely route to such protection.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Appeals Court Rules Civil Rights Act Protects Gay Employees

In 2010, Donald Zarda was fired from his job at Altitude Express as a sky-diving instructor. Mr. Zarda was preparing for a tandem sky-dive with a female student, when he noticed she was uncomfortable about being tightly strapped to him. To comfort her, Zarda told the student he was “100% gay.” Her boyfriend complained to the school about the comment. Zarda sued Altitude Express for violating the Civil Rights Act’s ban on sex and gender discrimination.

At first, the lawsuit looked like it was doomed. Although the Equal Employment Opportunity Commission had given Zarda permission to sue in federal court, the trial court and a three judge appeal court ruled against him. When Zarda passed away in 2014, it looked like the case had died with him.

However, his estate persisted and they filed an appeal to the 2nd District court en banc (the full Appeals court with all 13 judges). The EEOC won a separate case in which the court ruled that the gender and sex discrimination ban of the Civil Rights Act included sexual orientation, lending strength to Zarda’s claim.

civil rights actThe Justice Department under Mr. Trump interceded prior to the en banc hearing. The Justice Department argued that the Civil Rights Act did not explicitly cover sexual orientation discrimination. The DOJ also said that the EEOC did not “speak for the United States,” the first time that a federal department has openly attacked another federal agency. Nevertheless, the 2nd Circuit ruled against Altitude Express and found that the Civil Rights Act did include sexual orientation. It is unknown whether Altitude Express will appeal to the Supreme Court.

The Extent of the Civil Rights Act

Astute readers might notice that Zarda only claimed to be gay to reassure a female student that he would not be sexual with her while they were strapped together during a dive. It isn’t clear whether Zarda was actually gay or just joking. Legally, this is a difference without a distinction. Similar to criminal law, illegal employment discrimination focuses on the intent of the defendant, not the status of the victim. It makes no difference whether the employee was actually a certain race, religion, gender, or sexual orientation. If the employer takes action based on what they believe is the employee’s trait, that’s enough for the employer to be liable.

Of course, the case is about whether the Civil Rights Act protects sexual orientation from employer discrimination or whether Congress needs to update the Civil Rights Act to include sexual orientation. There are reasonable arguments on both sides.

The Civil Rights Act protects sex and gender. Case law is clear that employers cannot enforce sex stereotypes unless the job explicitly requires it. Employers cannot fire a woman for failure to wear skirts and makeup unless it is industry custom for women to wear a specific uniform. Expecting men to be attracted to women, or women to be attracted to men, is a similar stereotype that should be illegal. Obergefell, the Supreme Court case that legalized same sex marriage, is built partly on the reasoning that Equal Protection for sex and gender includes Equal Protection for sexual orientation. If the constitutional definition of sex and gender includes sexual orientation, there is no reason why the federal definition of sex and gender should not be the same.

On the other hand, there is a sharp difference between government action and private action. Just because the federal constitution applies to the government doesn’t mean that private actors are also subject to the same restrictions. The government has no authority or power to regulate speech, but YouTube and Twitter can close accounts with impunity. The only limitation is if Congress enacts a law restricting certain actions. If there is an ambiguity in a statute, we should expect Congress to clarify the meaning of the statute instead of relying on unelected judges.

Union Weakening Right to Work Law Upheld in Kentucky

Right to work laws are a misleadingly named movement being pushed across the nation. While they may sound like efforts to ensure jobs, they are actually a push to pass laws which undermine the power of unions by allowing employees to opt out of union dues while still requiring unions to provide these opt out employees full rights and protections.

The laws are a product of a federal law from 1947 called the Taft-Hartley Act. The act prohibited employers from running closed shops—agreements where they only hire unionized workers.  However, it allowed union shops—agreements where employees are required to join a particular union within a certain period of time after being hired.  The act also has a section which allows states to ban union shops as well.

The laws based on this section are right to work laws and are, at this point, exclusively state law. While they vary state to state, they all do essentially the same thing—allow an employee to opt out of paying union dues while still benefitting from union representation. Due to the exclusive bargaining agreements unions provided by the National Labor Relations Board (NLRB), The laws do not apply to federal workers, railroad workers, and airline workers.

right to workThere’s obviously two sides to these laws, not everybody can afford union dues and required union fees can seem like a hefty blow to a person’s paycheck. There are certainly times where it can feel like you’re paying a union to do nothing for you. However, unions truly are the backbone to quite a bit of improvement in pay, working conditions, and more. These rules leave unions without funds to protect their members, putting them in a tough position.

A couple of interest groups have been making a particularly hard push for right to work laws, especially in middle America and the south, for the last several years. The laws have seen a hodgepodge of success. However, through repeated attempts to push these rules the state of the law has slowly ratcheted further and further towards right to work despite constitutional challenges to the laws in state and federal courts. As it is, you are already generally allowed to opt out of union political activities and only pay for representation as to your wages and rights in the workplace.

At this point, there are 28 states with some sort of right to work law in place. These states include: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri (passed in 2017 and postponed to this year), Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming, and-of course-Kentucky. This last state has seen its right to work law recently challenged in court. However, just around a week ago the court ruled to dismiss these challenges to the law.

What Does the Kentucky Ruling Say?

The Kentucky court case challenging the constitutionality of the law made an argument we’ve discussed before in the context of right to work laws–they challenged the law as an unconstitutional government taking. A little over a year ago, we talked about a similar Wisconsin case bringing this argument.

We also said it was unlikely argument to succeed. Takings deals with the government taking all or part of property from a private party, either through eminent domain (the government simply laying claim to the property) or through regulation removing all use for the property.  Not only does takings generally deal with real property (houses and land and such), making it fairly unsuited to an argument regarding  the potential profits from services provided by a union, the 7th Circuit has explicitly considered and rejected the argument of takings when it comes to the constitutionality of right to work laws.

The 7th Circuit ruling argued that unions are compensated for their representation by their government sanctioned exclusive bargaining position with employers. Since the article on the Wisconsin case, the unions have lost their takings based challenges.

The Kentucky argument, brought by Teamsters’ Local 89, made a similar argument to Wisconsin’s. They followed a common line of argument in these sort of cases that the government is taking their private property without compensation by legally forcing them to provide services to people who are not paying members of the union.

However, Kentucky’s arguments went about the same as the Wisconsin case. The Judge on the case ruled that there wasn’t a present property interest on the part of the unions that was being deprived by the government. Instead, the most the unions could argue was a speculative future loss of income. Thus, he dismissed the case. He further dismissed claims of arbitrary government action and equal protection arguments.

This has been the trend in cases like this, there is certainly a property interest that will be lost and the law requires these unions to eat this loss if they want to keep their doors open. However, the common argument courts have made against this is that the unions have a clear recourse–pack up and go home. The unions are put in their position by their own choice, thus undermining the takings argument in the minds of many judges who have ruled on the matter. We’ve seen similar lines of reasoning in right to work cases such as one out of Indiana back in 2014.

Right to Work Across the Country

Right to work laws are an ongoing issue, they continue to be pushed nationwide. The spread of these laws is still ramping up–we may see challenges reach the Supreme Court before too long. The Supreme Court has already heard at least on case on the issue back in 2016. However, the death of Justice Scalia and the failure of conservatives in Congress to allow the appointment of a replacement left the issue in a 4-4 deadlock–as many cases ended during that period.

However, with Justice Gorsuch in place, the Supreme Court will have to address these laws eventually. As it is, the consensus seems to be growing among courts hearing these challenges that they are constitutional laws–despite how much they weaken the unions which protect employee rights. As it is, the makeup of the Supreme Court makes it likely that they will support this trend among the Circuit and state courts.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

NYC Bans Employers from Asking About Your Salary History

New York City has banned employers from inquiring about applicants’ salary history. This ban extends to advertisements, applications, and interviews. The City justifies this new policy on the basis that questions about salary history results in a “cycle of inequity and discrimination in the workplace, which perpetuates lower salaries specifically for women and people of color.”

A Reasonable Restriction

The City is potentially correct in its assessment that basing employment on salary history could lead to further inequity. If the only people who can obtain high paying jobs are people with high salaries, then people with lower salaries might be forever stuck in jobs that pay less. Of course, this policy does not affect applicants. Potential employees can still disclose his or her salary if they believe that revealing salary history would give him or her an advantage in the hiring process.

salary historyOn the other hand, this ban might unnecessarily restrict an employer’s right to free speech and press. Employers want to know if potential applicants can do a good job. Salary history can be a good indicator of progress if a previous employer gave the applicant salary raises during the applicant’s employment. In contrast, an applicant who worked in the same position but didn’t get any raises might have performed worse than the applicant who continually received raises.

Of course, there are other ways for employers to learn how well an applicant might before. The employer can give applicants tests to determine basic competency. The employer can ask about industry knowledge based questions during the interview. Or the employer can simply call the previous employers and ask how well the applicant did. There are plenty of ways for employers to obtain the information that a salary history could reveal. The new law would minimally affect employers and it might help a few employees.

A Discriminatory Anti-Discrimination Policy

Restricting economic class concerns to women and people of color only seems insensitive. Ironically, the webpage promoting this policy is itself potentially discriminatory.  There are plenty of white men, especially with the ongoing opioid crisis, who need help. Class and economic issues should not be limited to race and gender only. New York City is fortunate that the Civil Rights Act and the 14th Amendment have been interpreted so that only advertisements which harm groups of people are considered illegal.

However, economic class is not a protected class under the law. The City cannot justify its new rule on the basis of class discrimination. The language about specifically helping women and people of color was probably thrown in to help strengthen the City’s authority to pass such a law, since it does restrict employers’ free speech.