When the “Bird” May be an Employee’s Final Word
This case is interesting from an employment law standpoint for a variety of reasons. Apparently the employee in question worked for a private company, but the company is a government contractor. She was riding her bicycle in Virginia when Trump’s motorcade passed by her as he was leaving his golf club. She said that, at the time, all she could think was that the DACA program was ending
and immigrant children (“Dreamers”) were being kicked out of the country, ads for Obamacare were being pulled by the Trump administration impeding people’s right to sign up for healthcare, Puerto Rico is in the dark and our president is playing golf…again. So she decided to exercise her right to freedom of speech and give Trump the finger.
The first issue in this case is a First Amendment issue. Since the employer is a government contractor, employees enjoy free speech rights that most private employees do not. In 1996, the United States Supreme Court held, in two separate decisions, one of which was from Illinois, that independent government contractors have a First Amendment right to speak out on matters of public concern without fear of reprisal. But in this case, the gesture was not the problem. The problem was that a photographer snapped a picture of the gesture showing a woman on a bicycle from behind. The photographer was a White House photographer, the photo went viral and news outlets picked it up. The employee, proud of her actions, saw the photo and put it on her social media accounts on Twitter and Facebook as her profile picture. “Houston, we have a problem...”
The employee realized that this could be an issue and the Monday after all of this happened, she told the HR department what was going on. On Tuesday, much like Apollo 13, the employee was rolled out to the launch pad and sent into the deep dark void – not space in this case, but unemployment. The employer told the employee that her gesture violated its social media policy in that it was lewd and obscene and the policy specifically prohibits lewd and obscene material on a company employees’ social media accounts. At first blush, this termination appears to be okay. The employer has a policy. The violation of policy in this case has nothing to do with protected speech. It has to do with lewd gestures and obscenity. So the reason for terminating the employee is, on its face neutral. But this hilarious story cannot end here, and I don’t think it will.
When discussing her story with the media, the employee in question related that a male employee kept his job after posting on his Facebook account that someone was, “A f***ing Libtard a**hole.”
The company allowed the employee to remove the post, and he was warned about the company’s social media policy. Now, the company has treated a female employee much more harshly than a male employee after the two engaged in very similar, if not identical misconduct. This raises the issue of gender discrimination
and the company might have a problem with that. It will have to distinguish between the two employees on some basis other than gender and that may be tough.
So the moral of this story is twofold. First, you should have a well written social media policy that protects your company/agency’s image by prohibiting specific employee conduct which may be damaging to the organization, not because of its content, but because it is lewd or obscene in nature. That will cover all kinds of ridiculous behavior and if you need help with such a policy, an Ancel Glink employment attorney
can help you. The second issue presented in this case involves the age old requirement that you must treat employees fairly. You can avoid a myriad of employment claims by treating all of your employees the same regardless of race, gender, religion etc. In this case, the employer may ultimately end up paying a price for its decision because it failed to treat two similarly situated employees the same way.
As always, please do not hesitate to contact us
with any questions or concerns.
Court Vacates Arbitration Award That Mandated Destruction Of Records Subject To A FOIA Request
A recent Illinois court opinion confirms that privacy provisions within a collective bargaining agreement cannot usurp state law, particularly the Illinois Freedom of Information Act
. In City of Chicago v. FOP, Chicago Lodge No. 7
, No. 16 CH 9793 (October 18, 2017), the Circuit Court granted the City’s petition to vacate an arbitration award that required the City to destroy disciplinary files that were over five years old that were the subject of a FOIA request. The opinion reinforces the well-defined and dominant public policy to preserve government records that is reflected in FOIA.
By way of background, in 2015, the FOP filed two grievances claiming that the City had violated the collective bargaining agreement by releasing disciplinary records that should have been destroyed after five years pursuant to Section 8.4 of the collective bargaining agreement
. Section 8.4 is the direct opposite of transparency because it provides for the destruction of documents related to the investigation and discipline of police officers, including the investigation of complaints involving their use of excessive and/or deadly force against citizens of the City. Complaints against a police officer are virtually obscured from the public which is contrary to the transparency goals embedded in FOIA. These grievances were submitted to Arbitrator George Roumell, who presided over the arbitration, and issued four awards on these grievances, beginning in January 2016, with his interim award sustaining the grievances and directing the parties to negotiate a timeline for destruction of the documents older than five years old. Pursuant to the terms of the interim award, the City and the FOP met but were unable to identify records to be destroyed or agree upon a timeline.
In the meantime, the City informed the Arbitrator that on December 7, 2015, the United States Department of Justice (“DOJ”) had, pursuant to a number of federal statutes, opened an investigation into the CPD and Independent Police Review Authority (“IPRA”). The purpose of the investigation was to determine whether the CPD was engaging in a pattern or practice of unlawful conduct and, if so, what systemic deficiencies or practices within CPD, IPRA, and the City might be facilitating or causing this pattern or practice. The City also informed the Arbitrator that the DOJ had requested that all relevant documents, including disciplinary and investigative records, be preserved. On April 28, 2016, the Arbitrator issued his final award on the FOP’s grievances, determining that state law did not make section 8.4 of the CBA unenforceable, but that the DOJ document preservation request constituted a sufficient public policy exception to preserve the subject records until the investigation and all resulting intervention and litigation was concluded. On June 21, 2016, the Arbitrator clarified the award by stating that “destruction of records pursuant to the language of Section 8.4 is to be read and applied once the public policy exception brought by the Department of Justice investigation and its possible consequences no longer exists.” The City then moved to vacate the Arbitrator’s Award on the basis that the document destruction provision is unenforceable as it violates public policy.
The Circuit Court granted the City of Chicago's Motion to Vacate
an arbitration award that required the City to destroy disciplinary files that were over five years old that were the subject of a FOIA request. The City’s primary position in its petition to vacate was that the arbitration award violated public policy. In its decision, the Circuit Court agreed and granted the motion on the grounds that, as a matter of the public policy reflected in the FOIA, the City was prohibited from destroying responsive records until that FOIA request, and any others that the City may receive in the interim, is responded to. In addition to FOIA, the Circuit Court also relied on both the State Records Act and the Local Records Act in finding that the arbitration award violated a well-defined and dominant public policy of preserving government records. The Circuit Court also found that enforcement of the Award threatens the City's litigation hold obligations and prejudices the City's defenses to Monell litigation
The opinion is important and instructive for several reasons.
1. Privacy provisions within collective bargaining agreements will not supersede FOIA. Any collective bargaining agreement that exempts information from the ambit of disclosure under FOIA would not be binding because it would violate the public policy as expressed in FOIA. Thus, attempts to negotiate around or interpret a collective bargaining provision that circumvents the public policy effectuated by FOIA would be unenforceable.
2. Destruction of important public records undermines principles of government transparency.
3. Municipalities should not destroy records unless otherwise permitted to do so after following its obligation under the State Records Act and the Local Records Act. As the Circuit Court stated in its opinion, if municipalities “are to be responsive to the citizenry, it must have access to… records to make better-informed decisions.”
4. Municipalities should make clear to employees that they generally have no expectation of privacy. In view of the Circuit Court’s opinion, employers must meet FOIA obligations, and as a consequence, may be forced to reveal information, including among other things, disciplinary history, employee communications, even employee schedules, in order to comply with FOIA requests.
Please let us know
if you have any questions about this decision or the interplay between FOIA and collective bargaining agreements.
Court Rules that University Did Not Violate First Amendment for Disciplining Wacky Professor
Being a government employer can be tough. While private sector employers have great leeway in what they can discipline employees for, like holding political beliefs contrary to their own or even being a Green Bay Packers fan
, government employers do not have such liberties.
Government employers cannot discipline an employee for speaking on “a matter of public concern.” This means that a government employee cannot be disciplined for commenting on any type of broad social or policy issue that is not directly related to his or her employee. So, a government employee cannot be disciplined for stating that he or she would like to see the President assassinated
. Nor can a DMV employee be disciplined for stating the DMV wastes taxpayer money
. Instead, a government employee can only be disciplined for expressing personal grievances that comment on the day-to-day minutiae of the job, and do not address broader matters of public concern.
In a recent case
, a court found that a professor who engaged in rather bizarre behavior fell into this second category, and could be fired for his conduct. The professor taught music education, but focused a significant portion of his class on subjects that seemingly had nothing to do with this subject, like Satanism, anarchy, and politics. He also showed violent and explicit music videos in class. When a student complained about this, the professor created a Facebook page that criticized his students for not wanting to discuss broader issues and being incapable of thinking critically.
The professor’s criticisms were not limited to his students. He also created a Tumblr blog that accused the music department leaders of micromanaging him. He stated that he lacked confidence in the way his boss ran his department, as it was “heavy handed and not inclusive of everyone’s input.” He refused to make his students purchase lecture notes or attend live concerts put on by the music department, even though his department required him to do this. He was also accused of failing to provide sufficient feedback to his students. The professor was eventually denied a promotion, and accused the school of violating his First Amendment rights by this denial and by allegedly making him teach a heavier workload.
The court denied the professor’s claim, finding that his activity was not protected by the First Amendment. The court found the professor’s criticisms to be limited to internal matters that concerned his job, and not to broader social or political issues. He did not publicize his views to the world, but mostly discussed them with other colleagues or people associated with his school.
In this incident, the university addressed this employee’s conduct correctly, but First Amendment issues can be tricky. Sound policies that conform to the law are one key to properly addressing employee speech issues. Supervisor training is the other key to ensure that discipline is always appropriate. The labor and employment lawyers at Ancel Glink are experienced in public employee First Amendment issues and are happy to assist in these issues.
Executive Order Promoting Healthcare Choice: What It Means
The Executive Order states that:
“[i]t shall be the policy of the executive branch, to the extent consistent with law, to facilitate the purchase of insurance across State lines and the development and operation of a healthcare system that provides high-quality care at affordable prices for the American people”.
The Order directs the relevant departments of the Executive Branch (primarily the departments of Labor, Treasury, and Health & Human Services) to “consider” proposing regulations to enable and expand the availability of association health plans (AHP’s), short-term, limited-duration insurance (STLDI), and health reimbursement arrangements (HRA’s). So, right now, there are no regulations in place that authorize deviation from existing rules governing the ACA and ERISA
, among other statutes. But, if there were
such regulations, what would they do?
- Association Health Plans: In 1983, ERISA was amended by the Multiple Employer Welfare Act (MEWA). Prior to the amendment, multiple employer welfare plan sponsors contended their plans were covered by ERISA and therefore exempt from state regulation. But these multiple employer welfare plans, while offering attractive premium rates, sometimes were underfunded and undercapitalized, and therefore defaulted on their obligations in a number of cases. MEWA provided that states can regulate such multi-employer plans, resulting in some cases in concurrent jurisdiction by the federal and state governments over such a plan. The Executive Order directs the Secretary of Labor to consider proposing regulations to allow more employers to form AHP’s, including promotion of “AHP formation on the basis of common geography or industry”. The magnitude of the risk that AHP’s will replicate the MEWA experience will depend on the regulations enacted. In addition to the risk of default presented by an unregulated or loosely regulated health insurance provider, AHP’s present adverse selection and uniformity of regulation concerns. Because of lower premium costs, there is a concern that AHP’s will attract the young and healthy, leaving cost of providing health care to older and sicker individuals to existing health insurance markets and the federal and state governments. In addition, if AHP’s are allowed to be organized across state lines but regulated by the state of formation, the result is likely to be formation of AHP’s in the states with the least regulation, in turn presenting a threat to the viability of traditional health insurers in more tightly regulated markets.
- STLDI: Short-term, limited-duration insurance policies are not regulated by the ACA, but they are limited to three months in duration. The Executive Order contemplates extending the maximum duration and allowing such policies to be renewed at the option of the consumer. Instead of buying a health insurance policy that covers most health conditions and that remains in place for an unlimited time, STLDI policies are designed to provide health insurance on an as-needed basis. They present cost advantages to the consumer, but run the risk that the consumer, for whatever reason, will misjudge the period of need and thus will be uninsured when an otherwise insurable health crisis occurs.
- HRA’s: With two exceptions, an employer is allowed to employ a health reimbursement arrangement to reimburse employees for medical costs incurred only if the HRA is integrated with a group health plan. These two exceptions are the one-person stand-alone HRA and the Qualified Small Employer HRA (QSEHRA). Both the one-person HRA and the QSEHRA are applicable to certain types of businesses only and are otherwise limited in application. The Executive Order directs the Secretaries of Labor, Treasury and Health and Human Services to consider regulations or guidance to broaden the conditions under which employers may offer HRA’s to employees.
Stand-alone (non-integrated) HRA’s were in relatively common use before 2014, when the federal government (the IRS and the Departments of Labor and Health and Human Services) issued guidance requiring, in most cases, that an HRA operate in conjunction with the employer’s health insurance plan. The concern was that, without such guidance, employers would be encouraged to offer HRA’s in lieu of health insurance, in effect subsidizing the cost to employees of obtaining their own insurance through the ACA Marketplace.
There are a number of options for expanding the use of HRA’s, including allowing the rules for integrated HRA’s to apply to non-integrated HRA’s, or applying the QSEHRA model to employers of all sizes. At this time, no predictions can be made as to the direction that the new regulations or guidance may take with respect to HRA’s, or, for that matter, AHP’s or the expansion of STLDI.
Trucking Company Refused to Hire Veteran After Request to Use a Service Dog
The EEOC filed suit
against CRST Expedited, Inc., a national trucking company, on behalf of a United States military service veteran when the company based its hiring decision on the request of use of a service dog.
Leon Laferriere was prescribed an emotional support dog to help him cope with his post-traumatic stress and mood disorders after serving in the United States military. In May 2015, he applied for a position of a truck driver with CRST in Fort Myers.
As part of the truck driver program with CRST, applicants who have no experience must first attend driving school to earn their commercial driver’s license. Once they have obtained their license, and completed orientation, the applicant must drive with a more experienced lead driver to complete on-the-road training.
Because Laferriere was not an experienced truck driver and did not have a commercial driver’s license, he first had to complete driving school and the initial orientation. After successfully completing this first part of the training program, CRST issued him a conditional offer of employment based on the completion of the on-the-road portion. However, before advancing to this stage of training, CRST told Laferriere he could not continue to the on-the-road program due to their “no pet” policy. Although the EEOC alleges that CRST developed a new “Service Dog Process”
around the same time as Laferriere’s request for accommodation, both Laferriere’s request and employment opportunity with the company were denied.
This lawsuit was subsequently filed by the EEOC alleging that CRST engaged in unlawful employment practices by denying Laferriere reasonable accommodation for his disability in violation of Title I of the ADA
. CRST stated that an accommodation had been made when a plan was established for Laferriere to conduct his on-the-road training with his brother, an experienced truck driver. It was once his brother decided not to work for the company that those plans for accommodation fell through.
An employee’s or applicant’s requests of use of a service animal as a disability accommodation can prove daunting to an employer
. Service animals in the workplace require special considerations relative to other employees who might be allergic and to the care of the animal as well. That said, service animals are often found to be a reasonable accommodation for some disabilities. It seems that the situation in this case, where the applicant would be primarily working alone after training, would be ideal for the use of a service animal. Employers should rarely immediately discount any requested accommodation and all denials should be well documented with evidence of the hardship to the employer that the accommodation would cause.