Snider & Associates, LLC Newsletter

Employers will often offer severance in exchange for a release agreement from a departing employee. Companies want the assurance they will not be sued by terminated employees.

Most of the time, this is perfectly legal. It’s a reasonable trade: The employees get some money to help them with the transition, and the company gets an assurance that it won’t face a lawsuit.

But in some cases, a release violates the law. Companies offering releases need to make sure they’re legally valid, because they could otherwise pay severance and get sued anyway. And employees offered a release also need to understand their legal rights before they consider signing.

One issue, for instance, is whether a release can say the employee not only can’t sue, but also can’t file a discrimination charge with the Equal Employment Opportunity Commission asking the EEOC to sue on his or her behalf.

Some courts have held that such a provision is illegal. That means if an employee signs such a release, he or she can go ahead and file an EEOC charge anyway.

Recently, a fired employee at a Cleveland rehab center claimed that asking her to sign such a release amounted to “retaliation.” She not only filed an EEOC charge, she also sued her employer claiming it’s illegal to retaliate against an employee for exercising a legally protected right.

But a federal appeals court sided with the employer. It said the part of the release prohibiting EEOC charges might be unenforceable, but it wasn’t retaliation, since it didn’t really harm the employee in any way.

But a recent Maryland case came out differently. An employee refused to sign a release and filed an EEOC charge. The company again asked her to sign the release, receive a severance package and drop the charge. She sued for retaliation.

A federal judge ruled for woman, saying she could sue the company for retaliation. It said the company had harmed the employee by treating her worse than other workers as a result of having filed a charge.

The company argued it wasn’t harming the employee because she didn’t have a right to any severance – it was merely making her an offer. But the court said even though the employee didn’t have a general right to severance pay, the company didn’t have a right to pay severance only to those employees who didn’t file charges with the EEOC.

Age discrimination

Another issue involves when a company has layoffs. It often asks the terminated employees to sign releases. One big concern is if a company targets certain workers in the layoff because of their age.

Under a federal law, a company can ask laid off workers to sign releases of age discrimination claims – but only if it first gives them certain types of information, such as the job titles and ages of the employees who were laid off and the ones who were not.

The idea is to help employees discover whether they have a potential age discrimination claim before they sign away their rights.

Even if a termination is not part of a layoff, there are special requirements for many waivers of age discrimination claims. For instance, a release might have to specifically refer to the federal age discrimination law. Employees might have to be given a certain period of time in which to consider signing, as well as an additional period of time in which they can change their minds.

In general, a release is a contract, and the laws of contracts apply. A court is unlikely to enforce a release if it wasn’t made clear to the employee what he or she was signing, or if the employee was told he or she had to sign immediately and didn’t have time to adequately consider the offer.

As always, we’d be happy to discuss how the law affects your specific situation.

» back to the top

Worker sues after being fired for smoking

In a growing “wellness” trend across the country, companies are prohibiting workers from smoking at all – even away from the job.

Such policies are part of an effort by companies to promote healthier lifestyles and to hold down insurance costs. Some employers refuse to hire smokers and test new employees for nicotine.

But some workers claim these policies are an invasion of privacy.

For example, a Massachusetts smoker is suing a company after it terminated him following a drug test that came up positive for nicotine. He says he was not

aware he couldn’t smoke away from his job. He also claims he never smoked on the job or while on break, and that he chewed Nicorette gum on his way to the drug test.

He asserts his former employer violated his privacy and civil rights under state law. He claims in his lawsuit that the company cannot control his personal life, even though it may find cigarette smoking dangerous, distasteful or disagreeable.

The company argues it gives prospective employees plenty of notice about its policy on tobacco use.

» back to the top

Employer not liable for employee’s cyber threats

A California man allegedly used his company’s computer system to allegedly threaten individuals through e-mail and messages posted on Internet bulletin boards.

The individuals sued the company for emotional distress because it failed to take appropriate steps to prevent the man from using its system to send the threats.

The employer asserted it couldn’t be sued because a federal law protects a “provider” of an “interactive computer service” from liability based on content created by others.

The California Court of Appeal agreed with the company.

It’s commonplace for companies to allow employees access to the Internet via their network servers, the court noted. As such, the companies fall under the law’s definition of a computer service.

Also, the complaint treated the company as the source of the alleged threats, when in fact they were made by someone else. The court ruled this falls squarely under the protection from such suits under the federal law (known as the Communications Decency Act).

» back to the top

New California law mandates sexual harassment training

California recently passed a new law mandating sexual harassment training for any company with 50 employees or more if at least one supervisor is based in California.

This means companies nationwide could be affected by the measure.

Employers who take steps to comply with the law will likely be better off should they face lawsuits down the road. Companies have a strong defense if they can show they made a reasonable effort to comply with the law.

Some the requirements of the law include:

• Supervisors in California must receive training within six months of being hired or promoted.

• The training must be at least two hours of classroom or other interactive training, such as webinars, which must

be repeated every two years.

• The training should explain what constitutes sexual harassment, how to prevent it, what to do if it occurs, and the reporting process for complaints.

Two other states, Connecticut and Maine, also mandate sexual harassment training. Florida, Illinois, Pennsylvania, Texas and Utah require training for state employees only.

Conducting training in this area is a good idea regardless of whether it’s required by state law. Employers are helping their workforces as a result, and can also avoid or minimize liability by training their supervisors in this area.

If a lawsuit is ever filed, it’s important for an employer to show it takes sexual harassment seriously and cares about its employees.

» back to the top

Medical Leave Act regulation favoring employers is upheld

A federal appeals court recently upheld a federal regulation defining the maximum scope of an employer’s area of operation in assessing an employee’s eligibility for medical leave.

A woman requested unpaid leave under the Family and Medical Leave Act to care for her sick mother. When it was time for her to return, she was told her position had been eliminated. She then sued the employer for violating the FMLA.

The company argued the woman wasn’t covered by the FMLA because it didn’t employ at least 50 people within 75 “surface miles” of her worksite. Federal regulations state the distance between two sites is measured using surface transportation over public streets by the shortest route from the worksite where an employee works.

The employee countered that the appropriate standard should be “linear miles” from where she worked.

But the federal appeals court upheld the regulation, saying a surface measurement of distance is a reasonable assessment of an employer’s ability to relocate an employee from one worksite to another in order to cover for an employee who is out on FMLA leave.

The use of surface miles is a fair, reasonably accurate and commonly-understood method of determining whether an employer has a significant pool of substitute workers nearby, the court said.

The court followed a similar ruling from another federal appeals court.

» back to the top

Claims of discrimination based on military service are easier to prove

Under the federal law protecting military personnel from job discrimination, a company must prove a job action would have occurred even if a worker had not served in the military, according to a recent ruling.

This makes it easier for employees to prove they were discriminated against because of military service.

In the case, a man was a supervisor at an ocean shipping company and enlisted as a reservist in the U.S. Marine Corps. When the company fired him, he filed suit alleging the company discriminated against him under the federal law known as the Uniformed Services Employment and Redeployment Rights Act (USERRA).

Under most laws protecting workers from bias, an employee who sues has to prove the reason offered by an employer for an adverse job action is a “pretext,” and the real reason for the employment decision was discrimination.

But under USERRA, an employee has to only prove military service is a motivating factor in the disputed employment decision, according to a federal appeals court.

To avoid liability, the employer has to prove the adverse employment action would have occurred regardless of the employee’s military service, the court said.

» back to the top

Employee can add separate periods of employment to qualify for medical leave

A car salesman worked for a dealership for five years. After a five-year break, he began working with the dealership again.

After several months, he ruptured a disk in his back and began taking significant medical leave. The dealership then fired him.

The man sued, claiming he was fired in violation of the federal Family and Medical Leave Act, which allows up to 12 weeks of unpaid leave for medical problems.

The dealership countered that he wasn’t eligible for protection under the

law because the law only covers employees who have been employed for 12 months.

But a federal appeals court said the federal law is ambiguous on whether the period of employment has to be continuous. Also, the court upheld a Department of Labor rule permitting previous periods of employment to be counted under the FMLA.

As a result, the court ruled the salesman was eligible for FMLA protection and allowed his lawsuit to proceed.

» back to the top

This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call our firm today.

The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.

192.122.212.152/5.93