William A. Schreiner, Jr.

You may have heard this week that Hasbro, the maker of the Monopoly board game, has decided to let go of one of the board’s signature tokens – the iron.  The iron, according to NPR, seems to be a bit steamed behind a stoic exterior, while looking ahead to greener pastures.  Of course, we have no idea yet if the iron has a claim for wrongful termination – perhaps there’s a wrinkle in his contract with Hasbro? – but we’ll certainly keep an eye on it, at least to avoid burning ourselves.  It does seem, though, that whatever happens this guy always wins. 

Turning to relevant matters involving people: 

• We’ve written about the Family and Medical Leave Act, which turned 20 years old this week.  On its birthday, some argue it goes to far, while others say not far enough – analysis of the issue from both sides is here.  At the same time, the Department of Labor has published rules extending the reach of FMLA to veterans, military families, and certain airline employees.
• A former employee of BAE Systems, who worked for the defense contractor in Afghanistan, has filed suit against the company under the False Claims Act, alleging he was let go after he blew the whistle on the company’s billing practices, which he asserts were fraudulent and excessive. 
• This one sounds, well, Solomonic to us: The California Supreme Court, in a unanimous ruling, held that where a bus driver proved she was terminated for a prohibited discriminatory reason (pregnancy), but the employer showed it had legitimate reasons to fire her even without the discrimination, then the bus driver could get attorney’s fees and injunctive relief – but not back pay, other damages, or reinstatement.  The opinion in Harris v. Santa Monica is here.
• Finally, from the “signing doesn’t imply reading” department: Don Marsh, the former CEO of Marsh Supermarkets, a Midwestern grocery chain, testified this week in the company’s case seeking to recover about $3 million he spent on personal expenses.  According to the report of his testimony here, Mr. Marsh said the company’s code of conduct – which might have prohibited the spending – didn’t apply to him because he “wasn’t aware of it,” even though he signed it. 

• The Inbox

There are things we’re all supposed to do before a catastrophe occurs, to help prevent that catastrophe or minimize the harm from it.  This list would include changing the batteries in your smoke detectors, or making sure your car is kept in good repair, or seeing the dentist every so often for a thorough teeth cleaning. 

If you are an executive or a business owner with any role in hiring or managing others, I’m about to add one more suggestion to that list: check to figure out if you have insurance for employment-related allegations for which you may, in some circumstances, be held personally liable. 

• D&O
• Insurance
• The Basics

In Part One of this series, we looked at insurance for employment-related claims against business owners and managers.  Specifically, we looked at employment practices liability insurance (“EPLI”), and I suggested you find out if your company has this coverage – which, if you’re doing any of the hiring, firing, or supervising, is something you should know.      

Assuming your company (or entity – employment-related claims hit not-for-profits as well) has EPLI, then you need to ask some more questions to really understand what it covers and how it will work.  And the time to consider this is before you may potentially have a claim for coverage under it. 

• D&O
• Insurance
• The Basics

So much for starting the year off slowly!  In the areas we track – primarily disputes and issues between companies and their executives, but also anything that can impact those employment relationships – a lot happened in the first month of 2013.  We wrote about it – because while most of the country was in a deep freeze, here at SuitsbySuits headquarters in Washington, we enjoyed an unusually warm January and so were able to keep our fingers warm enough to type (no comment on our Tampa colleagues who bask in comparative warmth year round). 

The boundaries and mechanics of litigation and arbitration between executives gave rise to some thoughtful commentary on recent cases from our colleagues John Connolly and Adam Fotiades, which we’ve captured below in case you missed them.  We also looked at covenants not to compete, discovery gone awry, perpetual battles over social media and religion in the workplace, and – remember back to the holidays? – potential claims Bob Cratchit might have had against Ebenezer Scrooge under federal law:

• Tour De Fraud - When Finally Settling Your Dispute May Not Be Finally Settling Your Dispute (Ellen D. Marcus, January 30, 2013)

• Sometimes, It Pays To Be A Bad Sport: California Court Finds That Employee Who Deceived Her Employer About Having Signed An Arbitration Agreement Cannot Be Compelled To Arbitrate (Adam L. Fotiades, January 28, 2013)
• State vs. State Smackdown: How Other Courts Are Responding To California’s Unique Law ‎Prohibiting Covenants Not To Compete (P. Andrew Torrez, January 23, 2013)
• In Hallmark Ruling, Court Affirms Jury Verdict Against Greeting Card Exec (Jason M. Knott, January 21, 2013)
• Montana Supreme Court Sends Employee On Arbitration Expedition (Jason M. Knott, January 16, 2013)
• Does an Executive Have a Duty to Pull Punches In Personal Litigation Against the Company? (John J. Connolly, January 15, 2013)
• Not To Preach, But Religion In The Workplace Continues To Cause Disputes (William A. Schreiner, Jr., January 13, 2013)
• Can You Be Fired For Complaining About Work On Facebook?‎ (William A. Schreiner, Jr., January 13, 2013)
• Cratchit v. Scrooge - Further Holiday Adventures in Employment Law (Ellen D. Marcus, January 2, 2013)

• Monthly Roundup

Before you read this, go ahead and open your desk drawer.  Look beyond what may be some rather odd contents, and the fact that those contents may speak volumes about you.

Dig down and find the employee handbook that’s likely buried in there.  There’s a good chance you got this on your first day of work, put in in the drawer, and haven’t looked at it since.  But move those ketchup packets aside and pull it out, because the question for today is: does that book form a contract between you and your employer (or you and your employees, if you’re the owner of the business)?

• Arbitration
• Breach of Contract
• Wrongful Termination

Ah, religion. 

Whatever good it may – or may not – do for humankind is a subject for theological, philosophical, or old-fashioned barroom debate, not for this blog.  Nor do we opine on the multiple varieties of religious faith.   

We do, however, have to come across religion quite often when we’re writing about disputes between employers and employees.  Religion in the workplace makes things hotter than last year itself.  That heat, of course, leads to disputes that often find their way into courtrooms. 

When we write about religion, we’re really writing about the tension the exercise of religious beliefs or practices can cause in hiring and in the workplace.  Two recent cases showcase this tension and how religious belief in one case, and the lack of it in another, led to disputes.  Taken together, and setting the merits of the individual cases aside, the cases suggest conduct that employees and employers may want to avoid if they want to avoid these sorts of problems. 

• Religious Discrimination‎

Here in Washington, we’re getting ready for the Presidential Inauguration next weekend.  But the news doesn’t stop: 

• One Question Too Far:  An assistant VP at a bank in Texas alleges he was fired because he is gay.  Marty Edwards says in his lawsuit that he was passed over for promotion for several years, and when he questioned this he was told he didn’t fit the bank’s “image;” when he then asked specifically if his sexual orientation was a factor, he asserts, the bank asked for his resignation. 
• Another Showcase Showdown: the saga surrounding pregnancy and models who work on TV game show The Price Is Right continues.  We’ve covered the allegations that the show’s producers illegally terminated the models here.  Now, fired model Shane Stirling is appealing a trial court’s dismissal of her suit, contending the judge got it wrong by holding she needed to be pregnant at the time she was fired in order to bring a case alleging pregnancy discrimination.  Stirling was fired soon after she returned to work from maternity leave; the producers say she was let go as part of a general reduction of the number of models on the show. 
• From the “Is He Fired or Not” department: The former CEO of ShopSavvy has filed an interesting complaint in Texas state court, alleging that: 1) the company’s board improperly terminated him without cause; then 2) started negotiating with him to work in a different job; then 3) denied it had ever fired him; and finally 4) sent him a letter telling him he was fired.  This will be a neat one to watch, but it points out that it’s generally a good idea to be clear when communicating employment decisions and negotiating with executives.
• What Brown Can’t Do For You:  UPS did not need to provide a pregnant employee with reasonable accommodations to enable her to keep her job, the federal 4^th Circuit Court of Appeals has held, writing: “One may characterize the UPS policy as insufficiently charitable, but a lack of charity does not amount to discriminatory animus directed at a protected class of employees.”
• Trying Again: Colleague Andrew Torrez wrote here about former Bloomberg executive Anthony Martinez’ suit against his employer, in which he alleged his termination violated the Americans with Disabilities Act.  The trial court held that Martinez’s claim was covered by the forum selection clause in his employment contract with Bloomberg, which required all disputes to be litigated in England – and Martinez’s claim couldn’t be brought there.  Now, Martinez has filed an appeal from that decision with the federal 2d Circuit.  We’ll keep our eyes on this one, because it raises interesting issues about the scope of these often-overlooked – but frequently important – clauses that mandate where an executive and an employer have to litigate any disputes between them. 
• How About A Knuckle Sandwich: While it’s not the typical employment dispute we focus on, we couldn’t let the week close without mentioning this dispute between a Subway employee and a customer, who almost came to blows when the customer asked for ketchup on his cheesesteak sandwich.  Fascinating fact learned in our research – and we promise we never thought about this issue before -- but it appears Subway stores usually don’t even carry ketchup.  In any event, the employee has been fired by Subway. 

• The Inbox

NLRB Holds Facebook Kvetching Among Co-Workers Is Protected “Concerted Activity,” But Caution Is Reasonable As Social Media Meets Established Legal Framework

Let’s be clear: this is not a blog about social media.  It’s a blog focused on disputes between executives and the companies they work for and manage.  Through that prism, we look at many different issues that affect these employment relationships, including pregnancy, politics, sports teams and even – ahem – insurance.  

We’ve also written a lot recently about social media -- specifically the impact of Facebook, Twitter, LinkedIn and their kin on employee-employer relations.  Social media are rather quickly changing many of the dynamics of how employees and companies interact, and the law is rapidly trying to catch up.  That means there’s a fast flow of new developments in this area. 

It’s important to write so much about this, we think, to be true to our core purpose of trying to keep you current on these developments.  So at the risk of appearing to dominate our pages with references to Facebook, today we’ll introduce you to a new and unique wrinkle to come out of the intersection of the employment world and social media: a limited protection against being fired for workers who use their social media accounts to kvetch together about their jobs or their employers.  Readers, meet the recent decision by the National Labor Relations Board in Hispanics United of Buffalo, Inc. and Carla Ortiz. 

• Social Media
• Wrongful Termination

The use of social media by companies and executive employees continues to get them in trouble.  We’ve covered that here, here, and here. 

Some companies have concluded that having a social media policy in place is enough to avoid problems with Facebook, Twitter, Instagram, and whatever other means to communicate have come down the pike.  But to work, a social media policy needs to meet at least two other conditions. 

First, a social media policy has to be clear.  Second, it also has to be communicated to, and clearly understood by, the company’s employees.

It may need more than that. But at a minimum, if the policy doesn’t have those two operating elements, then enforcing it can do a company and its managers more harm than good – at least when it comes to their reputations.  That, at least, appears to be the lesson we can learn from the case of Rhonda Lee, a Shreveport, Louisiana TV meteorologist. 

• Social Media
• Wrongful Termination

So it’s Christmas time.  And Hanukkah and Kwanzaa time.  And it all follows Thanksgiving and then is promptly succeeded by New Year’s Eve and the Feast of the Epiphany. 

Yikes.  That’s a lot of holidays.  For employers and company managers, this means a lot of decisions about what days the business should be closed – and regardless of those decisions, it means lost productivity.  It’s hard to estimate how much productivity is lost due to the November and December holidays, but if the Super Bowl is any guide – and $820 million in productivity is lost during Super Bowl week – then it could be in the billions of dollars.  As one famous old curmudgeon noted, the whole thing is a poor excuse for picking a business owner’s pocket every December. 

My colleague Andrew Torrez wrote recently about the history of the Christmas holiday.  But looking at this more generally: how did we wind up with the number of holidays that we have now?  Did we always have this many? 

• Wage and Hour‎