Tag Archives: Employment

Tattoos, Facial Piercings, Ear Gauges? What’s an Employer to Do?

Contributed by Suzanne Newcomb

In the past, dress codes were straightforward. Depending on the nature of the business, they required a “neat, clean uniform” or perhaps “professional attire” and banned tube tops and flip flops. But as visible body art becomes more mainstream, many employers find themselves struggling to decide whether and where to draw the lines when drafting a personal appearance policy that works for their business.

As a starting point, body art itself is not a legally protected characteristic so bans are generally permissible. However, employers should be mindful that some tattoos, piercings, and other body adornments could have religious or cultural roots.  Accordingly, employers must ensure their policies do not adversely impact a particular ethnic or religious group and should take seriously requests to accommodate religious beliefs.

Back in 2004 a federal appeals court dismissed claims brought by a member of the Church of Body Modification finding that accommodating her multiple facial piercings imposed an undue hardship because it could adversely affect the employer’s public image. Since then, district courts have found that a restaurant employee who claimed covering his tattoo amounted to sacrilege; an employee who refused to remove her allegedly religious nose ring; and a Rastafarian who was moved to a non-customer contact position after refusing to cut his hair, all presented potentially viable claims warranting jury trials.

It is tough to say whether the tide is turning. Nevertheless, it is an issue many employers deal with on a regular basis.

Best practices for drafting an effective and workable personal appearance policy:

  1. Really think about what you will tolerate and why. Will you hire an employee with a visible tattoo? What if the tattoo is on her face? Might a total ban exclude applicants who would be a great asset for your business? Is there an alternative to a total ban that makes more sense? What about ear gauges and tunnels?
  2. Be prepared to justify the reasoning behind any bans or limits you decide are best for your business. Is the policy rooted in concern for the company’s public image? Fear of customer reaction? Safety or sanitation concerns?
  3. Consider whether the policy might look different for different segments of your workforce. One size fits all might not make the most sense here.
  4. Most importantly, as the cases referenced above demonstrate, employers must take claims for accommodation of religious beliefs seriously and engage in an interactive process to determine whether a workable accommodation exists if an employee or applicant claims conforming to the policy would infringe upon his religious beliefs.

The Ongoing Debate About Adequate Consideration in Non-Competition and Other Restrictive Covenants

Contributed by Carlos Arévalo

In late June, the appellate court for the first district reiterated that employment lasting less than two years is inadequate consideration to support enforcement of a post-employment restrictive covenant. In McInnis v. OAG Motorcycle Ventures, a motorcycle salesman filed a lawsuit seeking to have his non-competition agreement declared invalid because he resigned 18 months after signing the agreement. The employer counterclaimed seeking an injunction to enforce the restrictive covenant. The salesman won.Featured image

The court came to this conclusion after examining the 2013 first district case, Fifield v. Premier Dealer Services, Inc. That case has been criticized because of its emphasis on the duration of employment after the execution of the agreement, as opposed to reviewing the totality of the circumstances under the Illinois Supreme Court standard. The case involved an employee who was laid off when his employer was purchased by another company. The new company offered the employee a job, but required him to sign a non-competition agreement. While he signed the agreement, the employee resigned three months later. The employee and his new employer sued to invalidate the agreement. The court agreed and established a bright-line rule that employment lasting less than two years after signing a non-competition agreement would not be sufficient consideration. Before this decision, courts had maintained that employment for a “substantial” period of time would be sufficient consideration. The employer, supported by the Illinois Chamber of Commerce, appealed the Fifield decision to the Illinois Supreme Court. However, the appeal was denied.

The Third District Court also adopted the two-year rule. In the 2014 case of Prairie Rheumatology Associates, S.C. v. Francis, the court held that a physician, who left the practice after 19 months, was not bound by her non-competition agreement. Some federal court judges, however, have expressed skepticism that the Illinois Supreme Court would adopt the two-year rule. In February, Judge J.B. McDade of the Central District noted that the two-year rule in Fifield is “overprotective of employees, and risks making post-employment restrictive covenants illusory for employers subject completely to the whimsy of the employee as to the length of his employment.”

This ongoing debate is by no means settled. In fact, Justice David Ellis disagreed with the majority of the court in the McInnis decision. In his dissent, Justice Ellis stated that he does not believe that a per se rule exists in Illinois nor that a bright-line, two-year rule is warranted.  We will have to wait and see what happens.

Until the issue is settled by the Illinois Supreme Court, employers should review their existing restrictive covenants to ensure that there is sufficient consideration in light of these court decisions and should carefully analyze what consideration is being offered in agreements currently being negotiated. This additional consideration can take the form of added bonuses, additional benefits such as more sick or vacation time, or other incentives particular to the individual business and employees.

OSC TAL on Pre-Population of the Electronic Form I-9: Making Life Easier or a Headache?

Contributed by Jacqueline Lentini McCullough

In a Technical Assistance Letter (TAL) dated August 20, 2013 from the Department of Justice’s (“DOJ”) Office of Special Counsel, Deputy Special Counsel Seema Nanda, discourages pre-population of employee information in Section 1 of the I-9 Form by electronic I-9 programs due to potential discrimination concerns. Similarly, the Immigration and Customs Enforcement (“ICE”) has indicated that pre-population of Section 1 is impermissible.

Pursuant to federal law, a person or entity that hires, recruits or refers an individual for employment must verify the identity and employment authorization of each person hired, recruited or referred. The form designated for that purpose is the form I-9. The form I-9 specifies that Section 1 be completed by the employee. If an individual is unable to complete the form I-9 or needs it translated, someone may assist him or her in the preparation. A preparer or translator must read the form I-9 to the individual, assist him/her in completing Section 1 and have the individual sign or mark the form I-9 by a handwritten or an electronic signature attached at the time of the transaction.

The Office of Special Counsel (“OSC”) oversees Immigration Related Unfair Employment Practices. As such, the OSC discourages the practice of an employer pre-populating Section 1 with previously obtained employee information. This practice increases the likelihood of including inaccurate or outdated information in Section 1. Inaccurate or outdated information in Section 1 may lead an employer to reject documents presented or demand specific documents for Section 2 purposes. Furthermore, if an employer uses outdated or inaccurate information to submit an E-Verify query, a mismatch may result because the status or name in government databases conflicts with the employer’s outdated information.

Moreover, from the perspective of the anti-discrimination provision, employers relying on previously gathered employee information may be more likely to overlook that a particular employee has limited English proficiency (“LEP”) because Section 1 has been pre-populated by the employer. As a result, the employer may fail to provide the employee with translation or interpretation assistance in order to ensure the accuracy of Section 1, thereby assisting the employee’s understanding of the request for documents relating to Section 2.

The OSC is now the second governmental agency after ICE to notify the public to avoid pre-population of Section 1 of Form I-9.

Don’t Forget to Dot the I’s and Cross the T’s: A Reminder When Enforcing Call-In Policies for Employees on FMLA Leave

Contributed by Brandon Anderson

Once again, the courts have upheld an employer’s right to strictly enforce its call-in policy even if an employee is absent on FMLA leave.  While this isn’t the first time that a court has made this holding, the United States Court of Appeals for the Sixth Circuit case, Strouder, et al. v. Dana Light Axle Manufacturing, Case No. 12-5835, serves as a reminder about how an employer should go about enforcing such a policy.

The case involved an employee who unquestionably had some attendance issues.  The crux of the case pertained to a September 30, 2009 meeting, and, not surprisingly, the parties disputed exactly what happened during the meeting.  Essentially, the parties contested whether the employee informed the employer that he had a hernia and whether he advised the employer that he was having surgery the following week.  There was no question, however, that the employer was aware that the employee’s physician placed lifting restriction on his work activities.  The company did not have any light duty positions and advised the employee that, as a result, he could not work.  The employee responded either (a) he would have the weight restrictions removed or (b) he would try and have the weight restriction removed.  Regardless, the weight restrictions were not removed and the employee did not report back to work.

Following the meeting, on October 1 the employer advised the employee that his medical certification was still deficient and gave him until October 7 to submit proper certification.  The employee did not report for work on October 1, 2, 5, or 6, and he did not call in pursuant to company policy on those days.  As a result, on October 6, 2009, the employer sent the employee a letter advising him that his failure to call in resulted in his voluntary resignation and indicated that if there were extenuating circumstances that the employer should consider, he should contact his supervisor immediately.  On October 7, before receiving the termination letter, the employee obtained a completed medical certification and hand-delivered it to the company before he went in for his surgery.  The termination letter was received the following day, and, at that point, he began calling in to advise the company of his absence, in accordance with company policy.

The employee later admitted that he was aware of the call-in procedure, but thought that he did not need to call in because the company knew he was having surgery and knew that he was going to be out for a period of time. 

In affirming the summary judgment determination, the Court first addressed the issue of whether an employer may enforce its own internal notice requirements (i.e. calling in on a daily basis) even if the requirement goes beyond the “bare minimum” that would typically be sufficient under the FMLA.  The court diverged from an earlier Sixth Circuit case decided under the old regulations and concluded that an employer can enforce its call-in requirements “unless unusual circumstances justify the employee’s failure to comply with the employer’s [call-in] requirements.” 

The court then found that the employee did not produce any evidence demonstrating unusual circumstances that would have justified his failure to comply with the call-in policy, and, therefore, upheld the granting of summary judgment.

There is an important take away from this case.  Maintain and enforce call-in procedures regardless of whether the absence is FMLA related or not?  Well, yes, but this is old news.  The more important take away is close the circle when an employee fails to follow internal policies in utilizing FMLA—whether in a letter or in a disciplinary interview, ask the employee whether there were any unusual circumstances that prevented him or her from complying with company policies.

Lack of Protectable Interest in Patient Base Dooms Medical Employer’s Restrictive Covenant Case

Contributed by Jeff Glass

Employers who use restrictive covenants to protect their client base should take heed of the Illinois Appellate Court for the First District’s decision in Gastroenterology Consultants of the North Shore, S.C. v. Meiselman, M.D., et al.

In 1996, defendant Dr. Meiselman formed the plaintiff corporation with three other doctors. All agreed to non-competes that prohibited them for three years from soliciting the clinic’s patients within a 15 mile radius. Meiselman left in 2010 to join a nearby practice.  The clinic sued him and his new employer, seeking a preliminary injunction. 

The trial court denied the injunction on the grounds that plaintiff failed to establish a protectable interest Meiselman’s patients. 

On appeal, the court applied the test from the Illinois Supreme Court’s opinion in Reliable Fire Equipment v. Arrendondo.  Pursuant to Reliable Fire, a restrictive covenant is enforceable if: (1) it is no greater than necessary to protect the employer’s legitimate interest; (2) it does not unduly burden the employee; and (3) it does not injure the public. The court noted that the analysis is “unstructured” and requires consideration of the totality of the circumstances. 

The facts showed that, prior to forming the corporation, the defendant practiced for a decade in the area. After forming the clinic, he continued treating these patients.  He personally billed them, not the clinic.  The clinic did not help him with advertising or marketing. His compensation depended on his independent practice.  

Based on these facts, the appellate court held that the trial court did not abuse its discretion in holding that the plaintiff lacked a legitimate interest in the patient base and therefore was not likely to prevail on the merits.

Meiselman demonstrates that, even if restrictions are reasonable, the employer needs to show good reasons why it has an interest in the departed employee’s customer relationships. 

We recommend that employers review their agreements and revise them if necessary to have the employee acknowledge that:

  • he or she is being paid to develop customers and leads;
  • the employer is providing support for those efforts; and 
  • the employee understands that the relationships belong to the employer

In addition, document any marketing expenses, tech support, or other “back of the house” efforts that help the employee build his or her book of business.  Should the contract wind up in court, these measures will help establish that the customers belong to the company, too. 

On the other hand, if employees develop clients exclusively through their own efforts, bring a client base to the company, or are compensated on an “eat what you kill” system, Meiselman underscores the difficulty of establishing a protectable interest in that situation.  In that case, employers should consider alternate protections, such as a buy-out requirement, which compensates the employer without barring the employee from working with his or her customers.

Employers Could be Held Liable for Supervisors’ Comments and Use of Facebook

Contributed by Michael Wong

One of the biggest issues for employers is how much the internet and social media can be used to find information posted by or about employees.  However, how many employers consider their own social media footprint and who is contributing to it?  While an employer may be cognizant of what it posts on the internet, it should also be concerned about what managers and supervisors are posting on the internet and social media (Facebook, LinkedIn, MySpace, Google+, blogs, etc.).

As what has generally come to be recognized as the “Cat’s Paw” theory, the actions of a supervisor, even one who is not a decision maker, could be conveyed upon an employer to support the imposition of liability.  Staub v. Proctor Hospital, 131 S.Ct. at 1193.  As explained in Staub, because a supervisor is an agent of the employer, when he or she causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in the supervisor doing so, it is a motivating factor in the employer’s action. 131 S.Ct. at 1193.

Under the Cat’s Paw theory it is possible that an employer could be subjected to liability based on its owners’, directors’, managers’ and supervisors’ personal use of social media, including Facebook.  This became even more evident when the District Court for the Middle District of Tennessee held that posts on a company blog, posts on a manager’s personal Facebook page (even when removed) and a manager’s verbal comments, were sufficient evidence to create a genuine dispute of facts concerning one employee’s retaliation claim and another employee’s constructive discharge retaliation claim in a FLSA class case. Stewart v. CUS Nashville, LLC, 3:11-CV-0342, 2013 WL 456482 (M.D. Tenn. Feb. 6, 2013). 

In Stewart, the court found that a blog entry on the company’s website by its founder and president that “referenced a lawsuit initiated by someone who had been previously terminated for theft and contained the following statement directed to that individual: ‘Fu** that b*tch’” was sufficient evidence to allow a jury to find retaliation in violation of the FLSA. The court went on to find that the company’s Director of Operation’s post on Facebook, while intoxicated, stating “Dear God, please don’t let me kill the girl that is suing me . . . that is all . . .” and similar verbal comments while the employee was present, were sufficient evidence to allow a jury to find the employee was constructively discharged in retaliation for joining the FLSA lawsuit. While the court did not find the evidence was enough to grant either party summary judgment, the use of social media lead to the employer being faced with the uncertainty of liability and costs of a trial.

Bottom line: Employers must be aware that they could be held liable not only for what they post on the internet, but what their directors, managers and supervisors post on the internet.

Heads Up California Employers: A New Year Brings New Procedures for Investigating Employment Discrimination Complaints

Contributed by Carly Zuba

Beginning January 1, 2013, the California Fair Employment and Housing Act (FEHA) took on an entirely new look, thereby amending, repealing and adding to various provisions of FEHA.  These changes affect any employer with five or more employees working in California.

Notably, the new FEHA differs from the old FEHA in the following respects:

  • Elimination of the Fair Employment and Housing Commission (FEHC).
  • Creation of new authority for the Department of Fair Employment and Housing (DFEH) in enforcing FEHA and promulgating rules.  FEHC’s former regulatory and rulemaking functions were handed over to a seven-member Fair Employment and Housing Council within DFEH.  As such, employers should anticipate possible new regulations coming down the pike sometime this year.  Hopefully, some of these regulations will provide clarification to employers on some of the more complex areas of California employment discrimination law.  In addition, the council will conduct hearings on FEHA regulations and civil rights issues. Employers can participate in the rulemaking process by providing feedback and comments to the council. 
  • Authorization for DFEH to file cases directly in court.  If a discrimination claim before the DFEH is not resolved through mediation, conference, etc., DFEH can now bring a civil action against the employer on behalf of the Complainant, thereby standing in the place of the individual who originally brought the claim.  Employers will need to begin evaluating the differences between defending cases brought by DFEH versus cases brought by private attorneys. And, most significantly, the former caps on damages for claims brought to the FEHC have vanished – in contrast, there are essentially no caps on damages plaintiffs may recover in court.
  • Creation of mandatory dispute resolution procedure, before DFEH can proceed to court.  DFEH has a new Dispute Resolution Division.  Dispute resolution is now mandatory for all cases in which DFEH intends to file a civil action.  These dispute resolution services are provided to the parties free of charge.  The good news for employers and employees alike is that DFEH’s dispute resolution services boast an 80% settlement rate.
  • Ability for DFEH to collect attorneys’ fees and costs when it is the prevailing party in FEHA litigation.  If DFEH prevails in court, it can now obtain reasonable attorneys’ fees and costs, including but not limited to expert witness fees.  These fees and costs will be deposited into a Litigation Fund in the State Treasury. 

Of course, it is a bit too early to predict how these changes will truly affect the substance and volume of FEHA employment discrimination litigation.  Stay tuned, California employers…