Going After the Charlottesville Marchers' Jobs

Along with general mass hysteria, one of the things that came out of the Charlottesville "Unite the Right" rally was a widespread effort to identify and retaliate against individuals participating in the demonstration. While it might be understandable to exact some type of retribution on people expressing abhorrent views, the practice of doxing, or identifying people on social media for purposes of public embarrassment, can backfire for employers very quickly.

Several states, California for example, expressly protect an employee's political conduct from being a legitimate basis for some type of adverse employment action.  We discussed this previously in the context of the recently terminated Google engineer, and it seems fairly clear that simple participation in a demonstration against the removal of a Confederate statue would qualify as political activity under the statute. Note, however, that engaging in conduct that urges violence against others, denigrates particular religious, racial or gender groups, or similar actions would likely take an employee out of the protected sphere and provide the employer with an adequate basis for disciplinary action or even termination.

A number of other states have a much broader protection for employees that prohibits employers from taking action against employees engaged in legal off-duty conduct.  In some cases originally enacted to prevent employers from discharging smokers, these laws would seem to prohibit action against employees engaged in legitimate and lawful political demonstrations as well. Case in point-a Colorado grocery store worker was terminated allegedly because he organized and attended an adult Hitler rally and was affiliated with the Ku Klux Klan. He sued his employer in federal court trying to argue that the Klan was a religion.  The federal court tossed the case, holding that the KKK was not a religion and political activity had no nexus to his employment. But the judge noted in his decision that the employee's claims might well have been successful had he filed in state court under Colorado's lawful off-duty conduct statute.

So a caution to you employers out there seeking to deal with your people participating in controversial events-don't rush to discipline them without checking first to see if you might be setting yourself up for a wrongful termination lawsuit. While you might not like the idea of someone holding a particular viewpoint working on your staff, having to pay them damages and perhaps even rehire them is a significantly poorer alternative.

I wish to thank my law colleague here in Denver, Nick Haynes, for the idea and research legwork for this post.

Things You Don't Want to Hear From Your Jury Panel

In the Martin Shkreli case.
And this was before any evidence was taken.

Don't dis the Wu-Tang Clan, man.  There are consequences.

The Future of Work, Part 3

I continue to be astounded at how quickly artificial intelligence systems are advancing into the world of everyday labor.  Here's an article that reflects another incursion--into the world of retail sales.
These jobs have become more vulnerable recently as statutorily inflated minimum wage  rates, lack of flexibility imposed by local ordinances (I'm talking to you,  New York City and Seattle), and other factors make keeping people on these low skill retail jobs more expensive.
And we're not effectively training people to move into the world that will be created by these AI systems--a world that will require more detailed technical knowledge and understanding for jobs and careers. All this points to a major economic dislocation as these retail positions become automated.
Here's an assessment of what work is going to look like, and, unreasonably in my opinion, that argues for taking money from the rich to give to people who can't/won't raise their economic sights.

Millennials in the UK Are Apparently Not Much Different From Millennials Anywhere Else

At least according to this article.
It's always a mistake to generalize with specific individuals.  But these workplace place trends have been surfacing for some time now.  Will we see a counter-movement in education, or some other type of adjustment in workplaces to "top off" young workers with poor skill sets?

Takeaway from the Taylor Swift Case: Sometimes Employers Almost Have No Choice

From my partner here in Denver, Nick Haynes:

The U.S District Court of Colorado is all abuzz with a trial involving celebrity singer Taylor Swift. Swift was sued by former radio host David Mueller, who is seeking $3 million in damages, saying he was falsely accused of groping the star and was slandered as a result. Swift countersued, claiming sexual assault, for a symbolic $1. 

Mueller allegedly grabbed Swift’s buttocks during a photo opportunity. The facts alleged state that she complained to her bodyguard, who confronted Mueller, and Mueller was eventually escorted out of the venue. Someone from Swift’s team contacted Mueller’s employer, radio station KYGO in Denver, and he was terminated after an investigation.

KYGO almost had no choice but to terminate Mueller. After an investigation, they most likely determined that it was more probable than not that Mueller was guilty of the offense, which is generally the standard for termination decisions. The risk would have been too great to keep Mueller on as an employee. This incident could have been used against the employer in future allegations of sexual harassment of a coworker, negligent retention by KYGO had he sexually assaulted another third-party, or negligence in a general tort action due to similar behavior. Once an employer conducts an investigation and determines something like this most likely occurred, the safest route is to terminate the accused employee.

Any employer who is faced with a similar allegation, either by a third-party like Swift or by a coworker, should conduct and immediate investigation and use the following credibility factors (promulgated by the EEOC):
Inherent plausibility: Is it believable that Mueller would grab Swift’s buttocks?
Demeanor: When questioned, did Mueller seem to be telling the truth or lying?
Motive to falsify: Did Taylor swift have anything to gain by making such an allegation?
Corroboration: Was there additional evidence to support that the incident occurred – like a bodyguard to testify it happened or a photo that purportedly shows the incident?
Past record: It is unknown if Mueller had a past record, but anyone can see how KYGO did not want to see something like this happen a second time.

And it's very important that the assessment of these factors be made in writing, and kept in the event the employer has to recreate the decision process for the EEOC, the NLRB, or some other tribunal.

For Swift’s sake, we can all hope her lyric is true, “I’ve found that time can heal most anything.”

The Google Post and Its Aftermath

I have to wonder what's going on in the human resources department at Google recently. The company is the target of choice for a variety of lawsuits, and has now become something of a whipping boy for the press because of its large number of male employees.  Fairly or unfairly, the company is haled as an example of the professional ceiling women face in the STEM fields.

The irony of all this is that Google is one of the most liberal political business cultures in the country. It's so liberal, in fact, that people expressing politically conservative views feel isolated and targeted. At least that was the point of a memo written by a Google engineer that went viral this week. You can read the memo here, but the essence of it is that Google is not a diverse working environment, at least from an intellectual perspective, and that there is a definite firm monoculture that represses alternate worldviews. The author focuses particularly on the issue of women at Google, noting that perhaps biological differences factor into the suitability of women in some of these positions. If this is true, the author notes, then the way Google is going about trying to increase male-female diversity is problematic.

The piece is a difficult read, and I won't make any snide remarks here about engineers and communication styles.  The gentleman who wrote the memo could have phrased his points more tactfully. But there is nothing in this memo that is outside the academic discussion of the role gender plays in job selection and work assignments in this country. It is a thoughtful piece that takes into account recent social science research and notes that Google's culture actually restricts free discussion on the issues that are so important to it.

Unsurprisingly to those of us who follow the progressive world's responses to these kinds of challenges, the engineer author was fired by Google within days. As an employment lawyer, my first thought was "does this guy have a case against the company?" Certainly it appears that the action was unfair and unwarranted. But a company is not the state-it can police speech among its workforce to a much greater degree.

But that freedom is not unlimited. California specifically protects political speech by employees, and makes it illegal to terminate someone because of their political opinions or participation in political events. I'm not sure that this type of action would necessarily qualify as political, however. For one thing, making this political speech would conceivably insulate certain types of clearly objectionable opinions from an employer's reach. Think racist or sexist remarks along the lines of "barefoot and pregnant," or "shipped back to Africa."  So I think it's a stretch to call this protected political speech under California state law.

There's another avenue available to the employee, however. The National Labor Relations Board has greatly expanded the reach of Section 7 and 8 NLRA rights in the last few years. These Sections deal with so-called "protected, concerted activity", which is collaborative speech aimed at terms and conditions of employment of concern to the workforce at a company. It would be hard to imagine a more basic claim relating to the terms and conditions of employment than a challenge to a firm's corporate culture like the one here. I don't know whether the Board would take this case, since it runs against the progressive direction of the government's efforts over the last administration. But I think a direct challenge in the form of an unfair labor practice against Google has a legitimate chance of succeeding.

Here are some other reads on the issue:

http://www.investors.com/politics/editorials/did-google-just-choke-on-its-woke/

http://www.bostonglobe.com/business/2017/08/07/google-fires-employee-who-wrote-memo-about-women-technology-jobs/U8tL4oYksGg6U8XV6vSnFN/story.html?event=event25

https://www.theatlantic.com/politics/archive/2017/08/the-most-common-error-in-coverage-of-the-google-memo/536181/?utm_source=atlfb

Update.  Apparently the engineer's lawyers read the NLRB's recent actions the way I do.  And here is a relatively thorough analytical piece on the legal issues--note who holds what opinions regarding the inflammatory nature of the engineer's comments.

Another thorough analysis.  Note the inherent conflict between raising issues concerning how a company responds to discrimination, and the creation of a hostile work environment as a result of raising the issues.  I think that's the conundrum in which Google is now enmeshed.

Here's a good "what-if" letter from The Economist.  And an equally effective rebuttal.

A Major Change in NFL Drug Policy?

For the first time the League is making overtures to the Players' Association about investigating the possible role of marijuana as a pain management agent, without violating the terms of the  highly restrictive NFL substance abuse policy.

It's unclear how this will work, but given that the DOJ, for now, has essentially turned a blind eye to dope use in states where it's legal, the NFL may be looking to mitigate the negative publicity associated with the recent CTE discussions.  And also to keep its players in the game--there is a regular parade of players who are suspended for testing positive for marijuana.