There has been a firestorm of controversy recently over Google’s decision to fire James Damore. Damore is the software engineer who wrote an internal memo – subsequently leaked – that criticized the company’s policies on diversity and inclusion.
Specifically, Damore claimed that biological differences between men and women may account for the fact that women are under-represented in tech positions at Google and elsewhere. Google fired Damore for his statements, and his termination has been widely debated – earning praise from liberal groups and scorn from conservatives.
But was Damore’s firing LEGAL? Does he have a legal case against Google for wrongful discharge?
For a lot of people, this is a First Amendment issue. They say, “Doesn’t he have the right to express himself? Aren’t his Constitutional rights being violated if he is fired for speaking his mind, whether we agree with him or not?”
The answer to THAT question is “no.” The First Amendment applies to actions taken by the government, not by private employers. It would protect Damore from any action taken by the government, but not from action taken by Google.
But Damore still might have a case. He has already filed an unfair labor practice charge with the National Labor Relations Board. The law says that employees are protected when they engage in “concerted activity” with one another regarding the terms and conditions of their employment. Damore’s claim with the NLRB alleges that his memo – sent to other Google employees – was “concerted activity” about a company policy that affected the employment conditions of he and his fellow employees.
Additionally, Damore claimed in his memo that the company’s diversity program discriminated against men, because – he claimed – it gave female applicants and employees unfair advantages in hiring and promotion decisions. He can claim – and probably will claim – that he was terminated in retaliation for opposing what HE saw as discrimination in the workplace. Firing an employee for expressing opposition to what they REASONABLY BELIEVE is unlawful discrimination is illegal.
Note that the employee doesn’t have to be RIGHT that illegal discrimination is occurring. He or she just has to “reasonably believe,” in good faith, that it is. If they have that reasonable belief, the employee is often protected from retaliation for expressing their opposition to the practice.
This case raises some very interesting issues about employment law and discrimination, and will be very closely watched by many different advocacy groups – and practicing lawyers like us – in the coming months and years.
Something that didn’t even exist 15 years ago is now all the rage. I’m talking about “Social Media Policies” in the workplace.
What does this mean? Why do many employers have these policies? Are they important? Are there legal rules relating to these policies?
I don’t need to tell you about the explosion and popularity of social media sites like Facebook, Twitter, Instagram, etc. You know, those things that those of us over a certain age have been introduced to by our kids.
Well, it’s not surprising that many people post on these sites about their experiences at work. Usually the posts are benign and inoffensive. But sometimes they can be serious or controversial. And sometimes they can be downright nasty. They may criticize co-workers or supervisors. They may badmouth the employer. They may complain about working conditions or pay. They may argue in favor of organizing a union at work. They may be threatening or abusive.
Can employers limit or restrict what their employees say in social media content related to work? Can it discipline or discharge an employee based on what he or she says on Facebook and the like? Do employees have any rights in this area?
For “at will” employees – that is employees who are not in a union, do not have a contract, and do not work for the government in a civil service position – employers have a fairly free hand to discipline employees for social media posts that the employer doesn’t like. If the employee makes statements that injure the employer’s reputation, that violate its anti-discrimination or harassment policies, that threaten co-workers, or that exhibit a poor attitude toward work – to give just a few examples – the employer is generally permitted to act on that, and to discipline or discharge the employee. This does not infringe on the employee’s right to “free speech” since the employer is a private entity and is not acting as the government.
Even employees of private, non-union employers, however, do have certain rights with regard to social media postings. All employees, for instance, have the right to engage in “concerted activity” to improve the terms and conditions of their employment, or to discuss possible organization for their mutual benefit. So if employees are talking together on-line about their pay, or safety in the workplace, or the way they are being treated by management, employers may not take adverse action against the employees for doing those kinds of things.
It sometimes can be hard to distinguish what is and is not permitted in these cases. For instance, if an employee goes on a profanity-filled rant about his working conditions, and is disrespectful or even hateful toward his managers, can the employer discipline him for being disrespectful and hateful, or would the employee’s rant be considered “concerted activity” if it is directed to his co-workers and discusses their mutual working conditions?
If you have questions about your rights as an employer or employee, or if you want some guidance in implementing an appropriate and legal social media policy, be sure to contact competent legal counsel familiar with the latest developments in this quickly-developing area.
Our firm has long enjoyed a fruitful relationship with Tom Cooney and Crystal Faulkner at Mountjoy Chilton Medley, accountants in Cincinnati. Tom and Crystal are husband and wife and also hosts of a weekly radio program on 91.7 radio, WVXU aimed at helping business owners smartly and safely grow their business — Businesswise.
Finney Law Firm attorney Stephen E. Imm is to be featured on the program next week, and we encourage you to listen in. He will be discussing Ohio labor and employment law issues, from the perspective of an employer. The show times are Monday the 5th and Tuesday the 6th at 7:30 AM.
Also, plan on making Businesswise a part of your weekly listening to sharpen your business knowledge. Thanks to Tom and Crystal for continuing to make us a part of their business lives!
In the last 20 years or so, it has become more and more common for employers to require employees to enter into arbitration agreements. These are documents or policies that are designed to protect employers from having to defend lawsuits in court. They provide that if any legal disputes arise between the employer and the employee, before or after the employment relationship ends, they will be submitted to an arbitrator for decision, instead of to a judge or jury.
Employers have tended to favor these agreements for several reasons. First, the idea is that arbitration takes less time and is more streamlined than a court case, and therefore costs much less in attorney fees. Secondly, it is generally believed that arbitrators are likely to me more “employer friendly” than juries. Thirdly, there is believed to be less chance of a really “eye popping” damage award from an arbitrator than from a jury.
There is some validity to each of these considerations. And employee advocates have resisted arbitration agreements where they can, primarily because they prefer that their employee clients receive jury trials, and they view juries as more sympathetic to employee rights. There is some truth to this.
Employers should be aware that, In order for an arbitration agreement to be enforceable, it has to meet certain requirements:
1. It has to really be an “agreement.” In other words, it should be a written document signed by the employee. Merely having an arbitration “policy” that the employee does not formally agree to may be unenforceable.
2. It must allow the employee to recover the same remedies available at law. An agreement that limits the employee’s recovery, such as by prohibiting certain types of damages, may not be enforced.
3. It can’t make it too expensive for the employee to pursue arbitration. If the costs of arbitrating are far more expensive to the employee than the filing fees charged by a court, a court is less likely to enforce the agreement.
This last point has caused some employers to re-think the wisdom of requiring employees to sign arbitration agreements. The cost of paying an arbitrator for his or her service can be a five-figure expense. If the employer has to bear that expense alone – as it may have to do in order for its arbitration agreement to be enforceable – suddenly arbitration may not seem like a much less expensive alternative to a court proceeding.
Additionally, many sets of arbitration rules that apply in employment cases – such as those of the American Arbitration Association – have expanded the “discovery” (depositions, interrogations, etc.) permitted before an arbitration hearing. This is designed to make sure the employee has a fair opportunity to develop evidence to support his or her case, but it also makes the process longer and more expensive – again, more like a court proceeding.
Whether you are an employer or an employee, if you have questions about whether arbitration agreements are a good idea, or about whether a particular agreement is enforceable, please give us a call.
A common question I get is whether an employer must pay an employee for their accrued but unused vacation when they leave employment. If an employee has left under difficult circumstances, such as an involuntary discharge, there can easily be a dispute about post-employment issues like this.
Under Ohio law, accrued vacation is considered an earned benefit that the employee has a legal entitlement to. Therefore, an employee’s right to pay for vacation that was not used during employment will normally survive the employee’s termination or resignation, and payment will be owed.
I say “normally” because an employer can change this through a written policy that is clearly communicated to employees, in an employee handbook or otherwise. If the employer promulgates a policy stating that any unused vacation pay is forfeited when employment ends, that policy is legally enforceable, notwithstanding the general rule.
Employers should carefully consider whether to have a blanket policy like that, however, as it can lead to some harsh results. And some employees who are planning to quit, being aware that their vacation pay will be lost when they leave, will simply take their vacation right before they resign – and quit without notice as soon as they return.
For some employers, a sensible middle ground may be to have a policy stating that vacation pay is forfeited only under certain circumstances – such as if an employee is discharged “for cause,” or if she or he leaves without giving two weeks notice.
Please contact us to discuss what makes the most sense for your business, or if you have questions about you right to vacation pay.
When an employer feels the need to cut costs, the first thing it often targets is wages and salaries, because that is often the biggest expense it has. To reduce wage costs it naturally will look at reducing the size of its workforce. And when it does that, it will often focus on the people with larger salaries. In this way the employer feels it can save the most money with the fewest number of terminations – get the most “bang for its buck” so to speak.
The problem is that the people with the biggest salaries are also often among the oldest employees. People who have been at a company the longest tend – due to their tenure, and the accumulation of annual salary increases – to be the most highly compensated.
So when a company engages in a reduction in force, and focuses on higher salaried employees for termination, older workers are often hit harder than younger employees. Is this illegal? Is this age discrimination?
Technically no. Targeting someone because of his or her salary – if that is the reason he or she was targeted – is not age discrimination, even though the EFFECT of this cost-conscious motivation is to hurt older workers more than younger workers
Age discrimination is an intentional act, not an accidental or negligent one. It occurs as a result of stereotypical, biased attitudes about older people – such as that they aren’t as energetic or creative, that they are slowing down, that they can’t adapt to change, etc. It is these attitudes that the age discrimination laws were designed to address.
Having said that, employers should always be concerned about applying any reduction in force in an evenhanded manner. Any reduction that disproportionately affects a particular demographic group is going to be subject to scrutiny by the courts, and create a greater risk of litigation.
I receive a lot of inquiries from clients about the enforceability of non-compete agreements. For reasons that have never been clear to me, there seems to be a common belief that such agreements are “not worth the paper they are printed on.”
A non-compete agreement is a contract between an employer and one of its employees, stating that the employee will not work for a competing employer for a period of time – most commonly a year – after their employment with the contracting employer ends. These agreements often will also contain provisions against soliciting the employer’s customers (“non-solicitation”) and using the employer’s confidential information or trade secrets (“confidentiality”).
Historically, non-compete agreements were disfavored in the law as a restraint of trade. And some states – such as California – today have sharp restrictions against them.
In Ohio and many other states, however, non-compete agreements are alive and well, and are enforced in courts with regularity. Ohio has even held that a non-compete agreement may be enforceable when the employee doesn’t receive anything from the employer in exchange for signing it – what the law calls “consideration.” The Ohio Supreme Court has ruled that an employee’s continued employment alone can be sufficient consideration for an employee’s promise not to compete.
Many clients will point out that their former employer has not enforced non-compete agreements signed by other employees, and ask whether that doesn’t prevent the employer from trying to enforce one against them? The answer is “no.” Just because an employer chose not to bother enforcing a similar agreement against another employee does not prohibit it from enforcing it against you.
The law does recognize some defenses to non-compete agreements, and does impose certain limitations on them. Employers who want to protect their customers from former employees should seek competent legal counsel to draft enforceable agreements. And employees facing claims by former employers that they are in violation of such agreements should do the same.
Most importantly, employers and employees should get counsel about these agreements BEFORE the employee leaves the job. Employers: Make sure your agreements are enforceable BEFORE you present them to your key employees. Employees: Talk to a lawyer when you are PRESENTED with one of these agreements – don’t wait until after you’ve already signed it, or after you’ve left your current employer for a competitor.