EPSpros News and Snippets

Securities Compliance Officer Not An Exception to New York At-Will Employment

2012-05-25T12:47:00.000-04:00

A compliance officer who claimed he was fired for questioning the stock trades of the company president may not bring a claim for wrongful discharge.

In Sullivan v. Hamisch, Mr. Sullivan analogized his position to that of an attorney. Attorneys who protest their firm’s noncompliance with professional ethical requirements fall within an exception to the rule that employment is generally at will. Mr. Sullivan asserted that the legal and ethical duties of a securities firm are similar.

The New York Court of Appeals rejected this argument, finding among other things, that federal regulations in the securities business were insufficient to support an alteration of the at will employer employee relationship.

Navigating the World of Human Resource Consulting

2012-05-24T11:51:00.000-04:00

EmploymentSource™ Newsletter May Edition 2012 Edition

Lisa D. Baer, SPHR
Dallas, Texas

lbaer@epspros.com

Southwest Region

The economic conditions of the last several years have taken their toll on the budgets of corporate America – especially the budgets of non-revenue producing areas of the corporate world such as Human Resources. HR departments are increasingly asked to do more with less and are doing so in the face of increasing regulatory pressures while supporting a workforce that is changing and experiencing new levels of stress itself. As organizations struggle to maintain productivity and profitability with smaller workforces, making the best use of those limited resources requires creativity and resourcefulness. Often the resources and expertise needed to accomplish the goals of an organization are simply not available internally and using an outside consultant is necessary.

The selection of any external consultant can be a challenging process and this is particularly true for human resource functions. The years of streamlining within HR organizations have driven a large number of HR practitioners into the consulting business. The bar for entry in the world of HR consulting, an $18.5 billion dollar business, is relatively low. HR consulting services are provided by large multinational corporate giants, small boutique firms that specialize in specific services (training, investigations, and organizational development for example) and a host of individual consultants that provide a wide variety of services.

The variety and price range of services provided by HR consulting firms varies greatly, and their marketing is often difficult to comprehend even though there is an abundance of it - a quick Google search for “human resource consulting” yields 25 million results! How can you determine if a particular consultant or firm is going to solve your pressing problem? Do they really understand your objectives, industry and culture? Do they have a successful track record of providing the service successfully to other similar clients? Can they meet your deadline? Can they be trusted? Would it be more effective to stretch skills and resources and provide the service in-house? Will the need be an on-going one or is it short term or process related?

While navigating the human resource consulting world can be challenging, there are concrete steps you can take to ensure that your search for the right consultant or firm to address your specific need is successful.

Assess the need for a third party Not every problem requires outside expertise. The issues that human resource organizations face, however, are often perfect candidates for outside assistance. For instance, you may have day-to-day line management of your HR staff completely under control, but need help rallying your operation’s supervisors to become better motivators. How do you address that challenge? Can you articulate why a third party is needed and quantify the cost/benefit analysis? In this case, you may be seeking the breadth of experience brought by a consultant with hundreds of clients who have faced similar challenges. You might choose to use a third party to deliver compliance-related training to bring perspective and credibility to the topic that an outsider often provides – sexual harassment training for instance. Likewise, while you may conduct 95% of your misconduct investigations in-house, if your executive vice president of HR is the accused, you may find it beneficial to bring in an outside investigator for neutrality, objectivity and with an eye to potential future litigation. Understanding why you are searching for a consultant is as important as knowing the specifics of the objective. The “why” often drives the choice of consultant and will assist you in narrowing the candidates significantly.

Clarify your objective. Whether you are sorting out the specifics of a number of employee benefit options or trying to train every member of a 15,000 person staff on the intricacies and subtleties of the principles of diversity during a two week time period, understanding your intended outcome is imperative. Fuzzy objectives or objectives that change mid-stream will not only frustrate a potential service provider (and waste your time and money), but decrease the likelihood of success. Clear goals and objectives will allow you to communicate effectively and with specificity with potential vendors. In turn, clarity will help vendors provide you with better information regarding their services and their ability to meet your objectives and provide accurate estimates regarding the cost of their services.

Know your budget. The cost of HR consulting services can vary tremendously. Before you begin to explore alternatives, know your budget. Armed with common sense and concrete figures, you are better prepared to request and sort through proposals and quotes. Communicate with your vendors openly about the price range you believe is fair as those parameters will often weed out consultants who are unable to work within your budget. At times, your estimated budget may not reflect the market cost for the services you need and in those circumstances it is especially important to be realistic about your goals and what a consultant can accomplish within your budgetary constraints. Budgetary frankness allows the vendor to be realistic about what they can provide and assist you in understanding what can be accomplished within the constraints – monetary or otherwise – that you provide. Additionally, your flexibility with how the services are delivered may overcome budgetary obstacles. For instance, a limited training budget may require shorter classes or more employees per class, utilizing webcasts or on-line training instead of live training. You may be able to rely on licensed materials taught by in-house personnel. Once informed of your parameters, many consulting companies will do their best to meet your needs while accommodating your budget; however, this is impossible to do without the required information regarding your budget expectations. Again, communication with a prospective vendor is crucial to meeting your organization’s needs.

· Click Here For Full Article

Employee’s Heart Condition Found to be Direct Threat To Safety

2012-05-23T16:00:00.000-04:00

Employee with symptomatic heart condition and workplace with widespread use of heavy machinery will not receive ADA protection.

In Wurzel v. Whirlpool Corp (6^thCircuit), Mr. Wurzel was a factory worker. After twenty years of employment, he developed heart problems. Although cleared to work by his physician, Mr. Wurzel experienced severe chest pains and spasms on many occasions. He repeatedly required treatment in the plant’s medical emergency room. The employer became concerned about problems should these attacks occur while Mr. Wurtzel was operating heavy machinery, such as a forklift. He was transferred to a different position where he would not be using the forklift. As Mr. Wurzel continued to experience spasms, the employer hired an independent medical examiner to evaluate the situation. This examiner found that Mr. Wurzel should not be permitted to work alone or near moving machinery. Mr. Wurzel went on an extended sick leave.

Mr. Wurzel filed suit under the Americans with Disabilities Act. The Sixth Circuit Court of Appeal affirmed for the employer. Mr. Wurzel posed a direct threat to workplace safety, which is an exception to employer liability under the ADA. Whirlpool had made an objective decision regarding Mr. Wurzel’s job related abilities based on a non-discriminatory evaluation process.

Is it Gender Discrimination? Female Reporter Fired for Stripping

2012-05-21T13:36:00.002-04:00

Sarah Tressler was a recently hired reporter for the Houston Chronicle. Ms. Tressler covered fashion and society for the newspaper. On the side, she also wrote a blog called “Diary of an Angry Stripper.” This blog was discovered by another publication and disclosed publicly. Ms. Tressler alleges she was thereafter terminated; the reason was failure to disclose her part-time work as an exotic dancer on her job application.

Ms. Tressler asserts that the termination is discriminatory. Most exotic dancers are female. Terminating employees for being exotic dancer would have an adverse impact on women.

FMLA: Variety of Medical Conditions Can Be Combined to Find Serious Health Condition

2012-05-18T12:41:00.000-04:00

FMLA protection may arise a) when there is not a single serious medical condition and b) when just one day of leave is taken due to any medical condition.

In Fries v. TRI Mktg, Corp (Minn.), Ms. Fries had genital herpes and a bladder issue. She missed work on Friday due to painful urination. Over the weekend, she could no longer urinate and sought medical attention at the ER. The ER physician found that the urinary retention was due to her herpes. She was instructed to take Monday off due to that condition. She returned to work on Tuesday. Ms. Fries was suspended and ultimately terminated. The employer argued that FMLA did not apply because Ms. Fries did not have a serious health condition, i.e. she was not incapacitated for more than three days.

The district court refused to dismiss the suit. It found that the cumulative effect of these various health issues that affected Ms. Fries and caused one day of absence could be considered by the jury to determine whether she had a serious medical condition under the FMLA.

AT&T Hit with Five Million Dollar Verdict for Religious Discrimination

2012-05-16T11:07:00.001-04:00

In Bashir v. AT&T, Ms. Bashir converted from Christianity to Islam six years after she began employment. She began wearing the religious head scarf of Islam and attended Friday mosque services. Her co-workers and supervisors called her a “terrorist” and told her she would be going to hell. One manager repeatedly ordered her to remove her headscarf, harassed her for wearing it, and tried to rip it off of her head. She was harassed for three years. Ms. Bashir initially complained to Human Resources but nothing changed. She then filed a complaint with the EEOC. She was subsequently terminated.

The jury awarded her the five million in punitive damages on top of $120,000 in actual damages.

Its Official: Maryland Bans Employer Access to Personal Social Media Information

2012-05-14T12:10:00.000-04:00

The Governor of Maryland has signed into law a state ban on employers seeking access to employees’ personal social media. No penalties or enforcement means are specified.

Several states are poised to follow suit, having similarly proposed legislation to prohibit employer access to employees’ social media. Federal lawmakers have also introduced the Social Networking and Online Protection Act, which would prohibit employers from requiring employees or potential hires to provide access to online media content by any means. This proposed legislation would extend to the relationship between universities and it students, protecting students from having to disclose this information to educational institutions.

Inability to Work Overtime is Not Disability

2012-05-11T14:14:00.000-04:00

An employee’s inability to work overtime in and of itself does not qualify as impairment under the Americans with Disabilities Act.

In Boitnott v. Corning Inc., Mr. Boitnott worked twelve-hour shifts as a maintenance engineer. Mr. Boitnott experienced some severe health problems such as a heart attack and leukemia. He was released to return to work but limited to eight-hour shifts. He could not return to his previous position because of its requirement to work twelve hours. The employer believed that Mr. Boitnott was not disabled because he could work a normal forty-hour week.

The Fourth Circuit affirmed that Mr. Boitnott was not disabled under the ADA as he did meet its definition of a disability. He was unable to show his impairment substantially limited any major life activity; he was able to work a full week.

The Best of Intentions Is No Defense

2012-05-10T09:58:00.000-04:00

Any act taken as a result of an employee’s pregnancy is discriminatory even if that act was taken to protect the employee.

In Holland v. Gee, Ms. Holland worked in the Sheriff’s office for three years as a computer technician. Upon announcing her pregnancy, she was transferred to another position that was less technical and more administrative. It also resulted in a lower pay grade. Ms. Holland complained about the transfer. She received her old position back but was later terminated. After filing suit based on her termination, the jury found in Ms. Holland’s favor. The Eleventh Circuit upheld the jury’s award.

The supervisor had testified that she transferred Ms. Holland out of concern for Ms. Holland and her pregnancy based a prior miscarriage. The Court noted that though the supervisor was motivated by concern, the reason was still motivated by Ms. Holland’s pregnancy. It was therefore discriminatory.

Criminals in the Workplace: How Employers May Use Criminal Records

2012-05-08T12:42:00.000-04:00

The EEOC recently issued new guidance on how employers may use the criminal records of employees in employment decisions. The EEOC found that African-American and Hispanic populations have a higher incidence of issues with the criminal justice system. As a result, the use of criminal records in employment decisions has a disparate impact on those persons).

Arrest records may not be used to exclude a person from employment because criminal conduct may not have happened. However, the employer may the use the conduct underlying the arrest to assess whether it makes the person unfit for the position. Conviction records do usually provide sufficient evidence that the person has engaged in the criminal conduct.

Criminal history is not protected under Title VII. Thus, an employee must demonstrate that the employer’s use of criminal history is either disparate treatment (similarly situated non-minorities were not similarly penalized for criminal conviction) or disparate impact (employer’s blanket exclusion of employees with criminal history disproportionately affects Title VII protected group). The EEOC asserts that a complete exclusion of employees with criminal records is not job related and consistent with business necessity.

EEOC Expands Its Interpretation of Title VII to Include Transgender Employees

2012-05-07T10:00:00.000-04:00

The EEOC, for the first time, has ruled that gender identity, change of sex and/or transgender status is a basis for a claim under Title VII.

In the particular case before it, the complainant presented herself as a man to a federal agency. She applied for a position at this agency, as a man, and was told she would receive the position once her background check was completed. The complainant disclosed thereafter that she was transitioning from a female to a male. She was soon told the position was no longer available and it was filled with someone else.

Upon filing her complaint with the agency, she was told that her complaint for discrimination on the basis of gender identity and gender stereotyping would not be handled in accordance with the EEOC’s process for Title VII. She appealed to the EEOC.

The EEOC found that a transgender person who has been discriminated against based on gender identity could establish a case of sex discrimination under Title VII.

California Guarantees Continued Health Care for Pregnant Employees on Leave

2012-05-04T16:06:00.000-04:00

Employers with five or more employees must maintain and pay for health insurance coverage under their group health plans for female employees who take leave pursuant to the California Family Rights Act. Female employees are entitled to take up to four months of leave due to pregnancy, childbirth or related medical condition. The employee is entitled to precisely the same coverage she would have received had she not taken a leave.

In D.C., The Unemployed Are Protected

2012-05-01T10:33:00.000-04:00

The District of Columbia has become the first to include the unemployed as protected from job discrimination.

The Unemployed Anti-Discrimination Act of 2012 prohibits employers from considering the unemployed status of an applicant when making employment and hiring decisions. Moreover, employers and others are barred from creating advertisements that expressly limit applicant to those individual who are employed.

Notwithstanding these protections, employers are still permitted to evaluate the underlying reasons for a person’s unemployed status as it may bear on his or her ability to perform a position.

Worker’s Comp Claim Turned RICO

2012-04-30T16:14:00.000-04:00

The Sixth Circuit Court of Appeals has recognized the right of employees to allege a RICO claim against their employer for conspiracy to deny workers’ compensation benefits.

In Brown v. Cassens Transport Co., five employees alleged that their employer and a third party administrator solicited fraudulent reports from a biased physician who had a working relationship with the employer. All three parties were made defendants. It was further alleged that these three defendants were engaged in conspiracy to examine defendant’s employees and testify against them. The trial court dismissed the suit.

Upon appeal, the Sixth Circuit reinstated the RICO claims. The Court noted that statutory entitlements are property. The employees’ claims for benefits were found to be an independent property interest. The denial of this interest was found to state an injury under RICO. The Court did find however that for the employees to prevail, they must prove that they would have received a favorable workers’ compensation outcome but for the alleged fraud and/or conspiracy.

Are You Prepared? The New National Standards for Workplace Violence Prevention & Intervention

2012-04-27T17:12:00.003-04:00

EmploymentSource™ Newsletter April Edition 2012 Edition

Denise Kay
Denver, Colorado

dkay@EPSpros.com

West Region

Dominique Gantt, a guard for Security USA Inc., was assigned to the New Carrollton federal building in Maryland. Gantt had recently broken up with an ex-boyfriend, Gary Sheppard, and had obtained a protective order prohibiting Sheppard from contacting her anywhere, including at her job. Gantt told her supervisors about the conflict and gave them a copy of the protective order.

The company's Project Manager instructed all Security USA supervisors, including Gantt's supervisor, Sergeant Angela Claggett, to assign Gantt to an "inside" post while at work in order to protect Gantt from Sheppard should he ever violate the protective order. [i]

Challenging safety and violence risks, including those involving protective orders, threats of violence, and propensity for employee violence that goes undisciplined, cause extreme stress and disruption to a work environment. These situations must be handled with extreme caution and strategy to avoid harm, chaos, and legal liability. How do we design a program that effectively anticipates dangerous violent situations, prevents violent incidents, educates employees and contractors on safety policies, and effectively manages threats and actual incidents of workplace violence?

Employer representatives, for years, have searched for effective guidance on preventing and intervening in potential workplace violence. Our requests finally have been answered…

Two important publications released in 2011 provide long sought guidance for risk control and management of workplace violence.

ASIS International (formerly the American Society for Industrial Security) and the Society for Human Resource Management (SHRM) co-published the American National Standard for Workplace Violence Prevention and Intervention (“National Standard” or “Standard”).[ii]This new “WVPI” Standard provides an overview of policies, processes, and protocols that organizations of any size can adopt to help identify and prevent threatening behavior and violence affecting the workplace, and to better address and resolve threats and violence that have actually occurred.

Additionally, OSHA issued its first compliance directive on the investigation and inspection of workplace violence incidents (“Directive”).[iii] The OSHA Directive is primarily intended for use by OSHA Compliance Safety and Health Officers (CSHOs) who conduct inspections of businesses or respond to an incident, yet it also provides a useful guideline for employers to fulfill their responsibility under the General Duty Clause of the Occupational Safety and Health Act of 1970 to provide safe work and safe workplace. The instruction highlights the steps that should be taken in reviewing incidents of workplace violence when considering whether to initiate an inspection in industries that OSHA has identified as susceptible to this hazard. Additionally, if applicable to your business, OSHA offers guidelines for preventing workplace violence for health care and social service workers, recommendations for workplace violence prevention programs in late-night retail establishments, and a fact sheet for preventing violence against taxi and for-hire drivers.[iv]

According to Michael Nossaman, in his article New Standards For Workplace Violence Prevention And Incident Investigations[v], “Together, these two documents are a good resource for establishing or improving a WVPI program to protect employees. They also signal that a formal and comprehensive WVPI is not something that can be ignored or that just a minimum effort will suffice, especially in terms of downstream liability in the aftermath of an incident.” While employers have no legal obligation to use or follow these guidelines, they are considered current consensus on “best practice” and used as a comparative tool to assess an employer’s efforts to prevent violence as well as the adequacy of any crisis response.[vi]

Click Here For Full Article

[i] http://www.lawroom.com/Print_S.aspx?STID=975and http://pacer.ca4.uscourts.gov/opinion.pdf/031033.P.pdf.

[ii] Workplace Violence Prevention and Intervention, An American Standard, Approved September 2, 2011, by the American National Standards Institute, Inc.

[iii] U. S. Department of Labor, Occupational Safety & Health Administration, DIRECTIVE NUMBER: CPL 02-01-052 EFFECTIVE DATE: September 8, 2011, SUBJECT: Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents.

[iv] http://www.osha.gov/pls/publications/publication.searchResults?pSearch=Workplace%.

[v] http://www.protectivesecuritycouncil.com/uncategorized/new-workplace-violence-standards.

[vi]According to the National Standard, “In many ways, the Standard will help organizations to discharge important legal responsibilities related to their need to maintain a safe workplace; it is not intended, though, to set or define new legal obligation.” Ibid. at Section 1: Scope of the Standard, p. 1.

New EEOC Regulations on ADEA Defenses

2012-04-27T09:27:00.000-04:00

The new regulations pertain to the “reasonable factors other than age” (“RFOA”) defense used by employers when presented with disparate impact age discrimination claims. These regulations are a response to two U.S. Supreme Court decisions that held the RFOA test is the appropriate manner of determining whether a practice that disproportionately affects older individuals is lawful. In a trial, the employee must establish the specific employment practice that causes the disparate impact. The employer, in defending its decision, bears the burden of production and persuasion as it pertains to the RFOA defense.

According to the EEOC, the employers prove RFOA by showing that the employment practice was reasonably intended to achieve a legitimate business purpose and was meted out in a way that would reasonably achieve that purpose. The regulations include a list of enumerated considerations as to whether the employment practice is based reasonably on something other than age. It may be that these new regulations will increase the burden and scrutiny on employers.

Maryland Takes the Lead

2012-04-26T15:02:00.000-04:00

It looks like Maryland will be the first state to ban employers from requesting social media passwords from their employees. Employers would be prohibited from demanding usernames, passwords or any other means to access personal social media accounts through electronic devices. The law will apply to current employees as well as job applicants.

Employees are shielded from discharge, discipline or any other means of penalty for refusing to disclose this information. Similarly, employers may not refuse to hire any applicant because he or she refuses to disclose the information. Contravention of the law will likely give rise to a tort for a violation of public policy. The bill has been passed by both state houses and is awaiting the Governor’s signature.

Managers Do Not Have to Be Lunch Monitors

2012-04-25T12:35:00.000-04:00

The California Supreme Court has held that managers do not have to make sure that employees take their legally mandated lunch breaks.

The decision arises out of a class action against the parent company of the restaurant chain, Chili’s. The Court stated that it was too much to expect managers to be required to order breaks. Workers must decide for themselves whether to take their lunch breaks. Employers are only required to make sure that the break is available to the employee. State law does not require that employees stop all work for lunch; employees may choose what to do with their time.

The case has other issues pertaining to meal break violations that were sent back down to the trial court to be reargued.

Computer Fraud and Abuse Act Narrower in Ninth Circuit

2012-04-23T13:27:00.000-04:00

Giving rise to a further split among Circuit Courts around the country, the Ninth Circuit will not extend the Computer Fraud and Abuse Act to employees misappropriating trade secrets.

At issue was a former employee who was able to work with current employees to log on to his former employer’s database and obtain confidential proprietary data. The current employees had permission to be on the company computers. In upholding a dismissal of the charge, the Court found that the Act was intended to punish hacking only. To go further than hacking would criminalize any unauthorized use of information obtained from a computer and make procrastinating employees criminally liable for searching the Internet, according to the Court. By criminalizing such acts, it would allow employers to threaten criminal action for minor computer use by employees.

The Fifth, Seventh and Eleventh Circuits do permit employers to pursue claims under this act against employees who violate employer computer policies.

Halted: NLRB Posting Requirement

2012-04-20T12:02:00.004-04:00

Employers are, at least temporarily, safe from having to post notices in the workplace informing employees of their rights under the National Labor Relations Act. The Court of Appeals for the District of Columbia has ordered the National Labor Relations Board’s (NLRB) not to enforce this new requirement pending its review.

In 2011, the NLRB issued a new requirement wherein employers must affirmatively make employees’ rights to unionize, bargain collectively and strike conspicuous by poster or electronic means. Failure to comply was to be made an unfair labor practice. In one of two courts to rule on this issue, the U.S. District Court in South Carolina recently ruled that the NLRB had exceeded its authority in making this posting requirement. The Court could find no evidence that Congress empowered the NLRB to proactively regulate employers.

The District Court in D.C. had upheld the notice provisions while striking down the enforcement mechanisms in March 2012. However, upon appeal, the D.C. Court of Appeals has just issued an injunction prohibiting enforcement of any aspect of the rule pending its’ review of the district court case. This injunction is expected to last until at least September 2012.

Gender Identity Protection On the Rise

2012-04-19T10:21:00.000-04:00

Massachusetts just became the 16th state to specifically enumerate employment protection for “gender identity.” The other states are California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont and Washington, as well as the District of Columbia,

Gender identity laws are specifically intended to protect transgender employees. In Massachusetts, gender identity is stated to be “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

Facebook Passwords: Congress Seeks Guidance

2012-04-16T11:24:00.000-04:00

The headlines have been full of stories about employers asking for Facebook passwords as a condition of employment. Two democratic Senators are trying to determine whether this request is legal. The requests have been sent to the Department of Justice and the EEOC. From the DOJ, the Senators solicit information about whether the requests violate the Stored Communications Act or the Computer Fraud and Abuse Act. These acts preclude unauthorized access to computers and the Senators are inquiring whether coerced submission of this information would constitute unauthorized access.

The Senators have asked the EEOC whether these requests for passwords violate the employment discrimination laws. The reasons such requests may violate these laws are the online personal information pertaining to religion, sex, marital status, race et al. It may be that collecting this information as a background check could be a pretext for discrimination.

Anti-Harassment Policies Will Protect the Employer

2012-04-13T09:31:00.001-04:00

An employer with an effective preventative harassment policy can be shielded from liability for a supervisor’s conduct.

In Crawford v. BNSF Railway Co. several employees alleged sexual and racial harassment by a supervisor. BNSF had a “zero tolerance” harassment policy in place. However, the harassment was not reported to the company nor did the employees utilize the harassment policy. Once BNSF found out about the harassment, it took remedial measures and ultimately terminated the supervisor. However, the employees still sued.

The 8th Circuit refused to hold the employer liable for the supervisor’s harassment. The employees failed to complain about the behavior and thereby allow BNSF to investigate and take remedial action to stop the harassment.

Manager Protest of Sex Harassment Investigation Not Protected Activity

2012-04-11T10:03:00.002-04:00

Title VII does not protect a manager who complains about her company’s sex harassment investigation.

In Brush v. Sears Holding Corp, Ms. Brush was involved in investigating employee complaints. Upon receiving a complaint of sex harassment, Ms. Brush and another employee were directed to interview the complaining party. Ms. Brush followed up with a one-on-one interview with the woman wherein the woman alleged she had been raped by the alleged harasser. Ms. Brush notified management and insisted that the police should be notified. Sears terminated the harasser but did not call the police. Ms. Brush continued to insist that the police be notified but Sears refused because the investigation was still underway and the accuser did not wish the police to be involved.

Sears terminated Ms. Brush for failures in her investigation. Ms. Brush alleged that she was terminated for her opposition to the way the investigation was being handled. The 11th Circuit court upheld summary judgment in this unpublished decision, finding that criticism of an employer’s internal investigation is not protected activity under Title VII. A manager’s disagreement in the course of performing her duties does not constitute protected activity.

Facebook Suicidal Message Goes to Trial

2012-04-10T09:05:00.001-04:00

A Washington state court recently allowed a disability discrimination case arising out of a Facebook message by the employee linking thoughts of suicide to her job.

In Peer v. F5 Networks, Inc., Ms. Peer was under psychiatric care for depression. After being assigned the early shift at work. Ms. Peer emailed her supervisor to let him know that the new assignment was really making her depressed. She followed that with a Facebook message to her boss detailing her depression and her thoughts of suicide. A few days later, Ms. Peer posted a comment about work on Facebook in which she referred to her workplace as a war zone and stated that she has PTSD from the workplace.

Ms. Peer’s physicians had released her to work full-time. The employer however questioned her ability to complete her job without accommodation and given her statements, felt her coming to work presented direct risks. She was terminated. The court allowed the case to proceed to trial under the ADA and parallel Washington state law.