You saw your boss, coworker, or subordinate do something that you believe is illegal. Maybe they stole money from the company. Maybe they falsified or altered a report. Maybe they lied to shareholders. Maybe they asked you to do something that you believed was illegal. You want to report it, but you also want to know whether you can be fired for your whistleblower activity.
When the Silence is Broken, and the Secret is Out (Part 1)
Nearly 19.7 million Americans have something in common. Of those millions, those in the workforce keep their pain a secret – the idea of their employers finding out fills them with fear.
Sadly, that fear is not misplaced.
For millions, the battle with alcoholism and drug addiction is a daily fight. And because of the stigmas attached to these disabilities, people suffer in silence.
But what happens when the silence is broken, and the secret is out?
When an employee realizes they need help, they don’t know what steps to take. But they should act early. This is especially true if the employee realizes their work attendance or performance is suffering, or pressures on the job are having a negative effect on them.
Continue Reading When the Silence is Broken, and the Secret is Out (Part 1)
Dangers and Pitfalls of Blindly Signing an Employment Contract
We have all been there. You have gotten the job offer, and all that is left to do is sign the employment agreement. But before you sign that agreement, be sure to read it. In order to properly decide what is the best decision for you to make requires you to weigh all the available information. In this spirit, I’d like to touch upon two employment clauses that are gaining widespread attention. In doing so, I hope to highlight some of the dangers and pitfalls that come along when these clauses are ignored.
Continue Reading Dangers and Pitfalls of Blindly Signing an Employment Contract
Undisputed allegations that an employee was subjected to intentional sabotage in the workplace, which included forcing the employee to operate a two person machine by herself and placing heavy materials she needed to work out of her reach, is enough to establish a prima facie case of retaliation.
“Lopez responds that she suffered the following adverse employment actions as a result of her complaints: (1) she became the subject of actual sabotage in the workplace; (2) she was given a machine that usually had two operators, but she was supposed to operate it alone; (3) the men in the workplace were threatened not to help her; (4) her materials, weighing approximately 50 pounds were intentionally placed out of her reach, further reducing her production. In its reply, Sonic does not address whether the adverse actions on which Lopez relies in her response constitute “adverse employment actions” for purposes of her Title VII retaliation claim.” Lopez v. Sonic Components, LLC, 2015 WL 6549583 *5 (N.D. Tex, Oct. 28, 2015) (internal quotations omitted).
Lopez v. Sonic Components, LLC, 2015 WL 6549583, (N.D. Tex, Oct. 28, 2015).
An employer’s proffer of its own policy is not competent in itself as evidence the policy was followed.
“With regard to the letter, [Plaintiff]’s allegation is that he asked Chief Justice Jefferson to keep the letter confidential, not that Chief Justice Jefferson actually did so. In fact, [Defendant alleged that Chief Justice Jefferson did not answer the letter himself, establishing that the letter had not remained confidential. With regard to the disciplinary complaint, [Defendant] contends that Texas law requires the Commission on Judicial Conduct to keep such complaints confidential. But this misstates that law. . . . ‘[T]he commission may’— but is not required to—‘refuse to release the identity of a complainant” if such a request is made. Likewise, ‘the commission may’—but is not required to—‘keep the complainant’s identity confidential’ if the complainant so requests. At most, this establishes a process that the State Commission on Judicial Conduct is instructed to follow, not the process that it did follow. As with the letter, [Plaintiff] has not alleged that the State Commission on Judicial Conduct did, in fact, keep the complaint confidential.” Anderson, 2016 WL 6647759, at *4-*5 (footnotes omitted).
When pleading knowledge, it is enough to plead simply that the bad actor knew and this this precipitated the bad acts.
“[Plaintiff was not required to allege how [Defendant] knew of the letter and complaint, only that [Defendant] knew. Having done so, he has sufficiently pleaded that his letter and his disciplinary complaint precipitated [Defendant]’s allegedly untoward conduct.” Anderson, 2016 WL 6647759, at *5 (footnotes omitted).
A plaintiff’s own assertions about his official job duties can plausibly establish that his actions were outside the course and scope of his job duties.
“In the context of Garcetti‘s clear instruction, [Plaintiff]’s letter and disciplinary complaint were not created pursuant to his official duties. It is useful to note that [Plaintiff]’s supervisor, Vela, did not ask him, much less require him, to send the letter or to file the disciplinary complaint. [Plaintiff] expressly alleged that he did so “on his own initiative.” He also alleged that he asked Chief Justice Jefferson to “keep the letter confidential” so that no one “at the Thirteenth Court” would know about it. If [Plaintiff], as Vela’s briefing attorney, had an official duty to send the letter or to file the complaint, then why he would have purposely concealed his doing so from her?” Anderson, 2016 WL 6647759, at *10—*11 (footnote omitted).
Parties’ conduct can show whether or not a reasonable accommodation offer was ever made.
“[Defendant] contends that it twice offered [the employee] a reasonable accommodation in the form of clerical work, which offers she ignored or rejected. This first offer was undisputedly made, but made at a time when [she] was unable to return to work and on FMLA leave. [The employee] declined the offer on the advice of her doctor, and [Defendant] does not argue that this initial rejection matters. It instead argues that the offer remained open and that [the employee’s] failure to later accept constitutes a rejection of a reasonable accommodation. The proposition that the offer survived [the employee’s] rejection is legally dubious. In any event, as [Plaintiff] has shown, the conduct of the parties around the time of [the employee’s] termination is circumstantial evidence that there was no known offer to take a light-duty clerical position.” Equal Emp’t Opportunity Comm’n v. Vicksburg Healthcare, LLC, — F. App’x —, 2016 WL 5939424, at *3 (5th Cir. Oct. 12, 2016) (internal citations omitted).
An application for benefits under a disability policy stating that the claimant is “totally disabled” does not preclude them from claiming they could perform their job with reasonable accommodation if they never represented otherwise on their application and the definition of “disability” in the policy is not incompatible with that fact.
“[The employee’s] claim that she was temporarily totally disabled for the purposes of private disability benefits is not inconsistent with the claim that she could work if provided an accommodation. . . . [Plaintiff argued that] the definition of ‘qualified individual’ in the ADA was not incompatible with the definition of ‘disabled’ within the insurance policy, and it further explained that ‘nothing in the [disability claim forms] indicate that [the employee] represented that she was unable to perform the essential functions of her job with or without an accommodation.’” Equal Emp’t Opportunity Comm’n v. Vicksburg Healthcare, LLC, — F. App’x —, 2016 WL 5939424, at *2 (5th Cir. Oct. 12, 2016) (internal citations omitted) (emphasis in original).
A written job description put forth by the employer is not dispositive of job duties at summary judgment in the face of testimony that the job duties were not actually required.
“[Defendant] also contends that a written job description in this case establishes that the essential functions of [the employee’s] duties include lifting and pushing more than ten pounds. While written job descriptions warrant deference, ‘this deference is not absolute,’ and we must ask ‘whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential.’ [… C]onsistent with ordinary rules governing summary judgment, a written job description is not given dispositive weight in the face of contrary evidence.” Equal Emp’t Opportunity Comm’n v. Vicksburg Healthcare, LLC, — F. App’x —, 2016 WL 5939424, at *3 (5th Cir. Oct. 12, 2016) (internal citations omitted).