Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Karen McAndrew
The Vermont Supreme Court recently shed some light—although not total clarity—on the effect an employee-signed release agreement can have on any later worker’s comp claims she may file.
Brandy Clayton was a hair stylist at a J.C. Penney store. In February 2011, she filed a worker’s comp claim for a painful left foot condition that she alleged first occurred in March 2010 as a result of standing on her feet all day. Her employer accepted the claim as compensable.
In October 2013, while Clayton’s claim was being processed and settlement discussions were underway, she saw a podiatrist for pain in her right foot as well as her left foot. The podiatrist noted that her pain in both feet was likely related to standing all day at work. She saw the podiatrist again for the same complaints in early 2014, and in June 2014, she told an independent medical examiner of pain in both feet.
In September 2014, Clayton and J.C. Penney signed a “Full and Final Form 16 Settlement Agreement” related to the March 2010 injury and filed it with the Vermont Department of Labor (VDOL) for approval. A completed Form 16 must be filed before the VDOL will approve any settlement of a worker’s comp claim.
The accompanying release agreement contained something of a mash-up of language pertaining specifically to Clayton’s March 2010 work-related injury and any associated conditions and broad general release language about any injury or condition related in any way to her employment.
By statute, the labor commissioner can approve a worker’s comp settlement only if its terms are in the employee’s best interests. To this end, a hearing officer appointed by the commissioner sent Clayton a letter that referred to her “foot pain” resulting from her work activities and cautioned that she should understand that signing the release “means that if you get worse in the future and need to see a doctor . . . or even have to search for a less strenuous job, you will not be entitled to any worker’s compensation assistance. I need to know that you completely understand this.”
Clayton signed the agreement, with the acknowledgment that she understood “that once the agreement is approved, I will relinquish my right to all future worker’s compensation benefits causally related to my . . . work injury.” The hearing officer then approved the settlement.
Six months later, in March 2015, Clayton filed a worker’s comp claim for injury to her right foot. J.C. Penney filed a form denial, stating that the condition predated the release and was causally related to her left foot injury. The commissioner held that the release barred all claims causally related to the specific work-related injury but then took it upon herself to rule that a release that bars anything other than claims related to the specific work-related injury—here, the left foot injury—is void as a matter of public policy. The parties appealed the commissioner’s ruling to the Vermont Supreme Court.
Court weighs in
The specific question before the supreme court, therefore, was whether the commissioner had the authority to void a release on public policy grounds, and the court held that she did not.
The powers of an administrative agency such as the VDOL are limited to those specifically granted by statute. The applicable statute in this case says the commissioner has the power to disapprove of a settlement or release only if it doesn’t conform to the general worker’s comp scheme or if it is found not to be in the best interests of the employee. In this case, there was the added fact that the commissioner’s designee—the hearing officer—had previously approved the release, so the commissioner had no authority to reverse that decision.
This is where the confusion comes in, however, because in the end it’s not clear what the dispute was about. The commissioner had held that the release was valid insofar as it covered conditions arising from the original work-related injury but not to unrelated claims arising from later injuries. The supreme court said it was valid to the extent it covered injuries that “pre-date or co-occurred” with that March 2010 injury, and J.C. Penney had apparently narrowed its defense on appeal to a contention that Clayton’s right foot injury was causally related to her left foot injury. So it seems like everyone was on the same page, in which case it’s not clear why the supreme court even waded into what appears to be a nonissue.
Moreover, the court’s opinion doesn’t clarify what would seem to be the critical issue: Does the release cover all work-related injuries—such as the right foot injury—that occurred before the date the release was signed?
In most other contexts, releases are written in terms of any claims “known or unknown” that have occurred up to the date of the signing of the release—and the release in this case, while somewhat poorly worded, contains language to that effect. The court referred only to injuries that “pre-date or co-occurred” with the left foot injury. It didn’t address the question of whether the release would bar further related claims. If the right foot injury happened after the left foot injury but before the release was signed and it was known at the time the release was signed, would the release bar a claim on the right foot? That answer will have to wait for another day.
However, the court did provide some helpful language about the enforceability of releases in the worker’s comp context. Once a release is approved by the labor commissioner, it may be set aside only if entered into under circumstances of fraud or “mutual mistake of fact,” which are the general standards for setting aside any otherwise valid contract.
The main message, in this and other contexts, is the importance of clarity and precision in contractual language, including releases, which are often used in connection with settlement of discrimination, wrongful termination, and other employment-related claims as well as worker’s comp claims.
Karen McAndrew can be reached at email@example.com or 802-864-5751.
by Leigh Cole
Employment-based immigration status generally is specific to the employer and the position. When employees are terminated or promoted or their job description changes, you should expect their employment-based immigration status to be affected. Tensions can run high when an employee’s personal and family immigration status is put at risk, regardless of whether the change is a termination, a voluntary departure, or even a promotion. Employers should identify employees’ immigration status as an issue with an employment change as early as possible.
Record immigration status in personnel files
When an employment relationship isn’t going well or is in transition, it’s important to identify immigration issues as early as possible as you consider how to proceed. Poor performance, termination, job changes, layoffs, and even promotions can be particularly stressful for employees whose permission to live and work in the United States is based on their employment. Also, it’s possible that an employee’s spouse could lose his right to work in the United States if the employee’s job changes or ends. Employers are not required to base employment decisions on immigration considerations or continue employment because of immigration sponsorship. Even so, the dynamic should be brought into the discussion at the outset so the employer isn’t caught off guard by the employee’s questions and concerns regarding job changes and his immigration status.
It’s not unusual for a manager or supervisor who is dealing with changes or HR issues not to know or to forget that an employee’s immigration status is sponsored by the employer. It’s easy to lose track of the immigration element if there’s no mention of it in an employee’s personnel file. I-9s and other immigration records, such as public access files for H-1B cases, should be kept entirely separate from personnel files so they can be readily shared in accordance with lawful requests from government officials (for I-9s) or inquiring members of the public (for public access files). Personnel files should contain copies of the employer’s immigration applications for the employee, including I-129 petitions for nonimmigrant status, Program Electronic Review Management (PERM) applications for labor certification, I-140 petitions for immigrant status (green card), and TN letters of support. If adding copies of immigration applications to personnel files isn’t feasible or practical considering your record-keeping practices, a reasonable alternative is to at least mention in an employee’s personnel file that he has an employment-based immigration case.
Best practice: Keep files for I-9s and public access files for H-1B cases separate from personnel files. Place copies of immigration applications in the employee’s personnel file for future reference.
Ensure counsel is aware of immigration angle
Be sure to bring the employee’s immigration status to the attention of employment counsel advising you on the situation. Employment lawyers aren’t always given the full personnel file for review, and they won’t necessarily know that you sponsored the employee for immigration status. Even if the same law firm handles your immigration and employment matters, employment counsel initially will focus on the facts you share with them and may not identify immigration status as a key issue for preliminary analysis unless you share it. Employees may react differently to employment actions if they believe their immigration status may be in jeopardy. Employment and immigration are related but separate areas, so employment counsel may need to consult with immigration attorneys about the immigration consequences of an employment action.
Best practice: When consulting with employment counsel about job changes, tell your attorneys if an affected employee has employer-sponsored immigration status at the outset.
Consider whether the job change is ‘material’
For all employment-based immigration categories, a material change in employment will likely require an amendment to the employee’s immigration approval. That general principle applies to all employment-based nonimmigrant categories, including E-1 treaty investor, E-2 treaty trader, E-3 specialty occupation worker from Australia, L-1 multinational transferee, O-1 extraordinary ability, P-1 performer/athlete, TN professional under the North American Free Trade Agreement (NAFTA), and others. It also can apply to permanent residency cases, depending on the facts and the status of the application process. Any job change for sponsored employees must be considered in this light.
Under U.S. Citizenship and Immigration Services (USCIS) guidance issued in May 2015 in light of the Simeio decision, employers are required to file an amended H-1B petition if there is a “material change” in employment (see “DHS clarifies ‘material change’ in work location for H-1B employees” on pg. 3 of our June 2015 newsletter). Filing an H-1B amendment triggers a new prevailing wage analysis (and potentially a higher prevailing wage), a new worksite posting regarding the H-1B sponsorship, and the expense and administrative burden of preparing and filing a new petition. An amended H-1B petition must be filed before the employee moves to a different work location outside the area of intended employment covered by the existing H-1B approval. Filing an H-1B amendment after the location of employment changes is not sufficient. So, to maintain H-1B compliance, employers must be vigilant about even seemingly minor changes in the location of employment.
If there is a permanent residency case in process, ultimate approval of the case may be jeopardized if the position changes in material ways and no longer matches the position described in the labor certification or I-140 immigrant petition. For successful approval, the qualifying offer of employment must continue until the employee’s I-485 adjustment application is approved (after labor certification approval, if required, and I-140 approval) or until the I-485 adjustment application has been pending at USCIS for at least six months. The timing of termination or a job change has direct consequences on a pending permanent residency case and should be carefully considered when taking employment actions. Losing the benefit of a permanent residency case in process can have drastic effects for both the employee and the employer, which will have devoted significant time and resources to a case that is no longer viable.
Best practice: Consider potential immigration consequences of any job change for a sponsored employee, and determine whether it’s a material change that will have immigration consequences.
Early termination of H-1B employment has consequences
When H-1B employment ends before H-1B approval expires, the employee’s H-1B status and the H-4 dependent status of her derivative family members are terminated. The employer’s duty to pay the wages set forth in the approved H-1B petition continues until H-1B approval expires or the employer notifies USCIS of the early termination and withdraws the labor condition application approved by the U.S. Department of Labor (DOL). Employers have been held liable for back pay to former H-1B workers for periods beginning with early termination and lasting until the mandated notifications are provided to USCIS and the DOL. Also, if an employer terminates an H-1B employee before her H-1B approval expires, it must offer to pay the costs of return transportation to the worker’s home country and pay the costs if she actually returns to her home country.
Best practice: Identify early H-1B terminations as soon as possible so your required compliance steps can be completed on a timely basis.
USCIS adjudication times for employment authorization
As a general rule, once an employment authorization document (EAD) expires, the person can’t work until a new EAD from USCIS arrives in the mail. On December 31, 2015, USCIS proposed eliminating the requirement that it issue an interim EAD if it takes more than 90 days to approve the I-765 application for employment authorization. For years, employers and employees have been able to count on receiving EADs within 90 days or, if not, obtaining an interim EAD promptly from a local USCIS office.
USCIS hasn’t issued the final rule yet, but employers should expect it soon. I-765 applications for employment authorization should now be filed 120, not 90, days in advance. The change is most relevant to employees who are permanent residency applicants with pending I-485 applications for adjustment of status and beneficiaries of Deferred Action for Childhood Arrivals (DACA). If you have employees who renew their EADs each year, please share this information with them so they will know to apply earlier going forward.
The author can be reached at firstname.lastname@example.org or 802-859-7035.
Kendall Hoechst, Amy McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Lauren Sampson
Can a state employee use 21 V.S.A. § 384(b)(7) or Article Four of the Vermont Constitution to sue his employer and enforce his minimum wage and hour rights? The Vermont Supreme Court recently affirmed that state employees are not covered by § 384(b)(7), and Article Four does not create property interests in claimed employment rights.
What the law says
In relevant part, § 384(b) states that an employer “shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek.” The subsection “shall not” apply to “state employees who are covered by the federal Fair Labor Standards Act” (FLSA).
The FLSA did not cover most state government employees when it was passed in 1938. However, when the federal law was amended in 1974, its coverage, including the minimum wage and maximum hour provisions, was “extended . . . to virtually all of the remaining State and local government employees who were not [previously] covered.” There are two key exceptions: elected officials and their appointees, and employees of legislative branches.
In Garcia v. San Antonio Metro. Transit Authority, the U.S. Supreme Court affirmed in 1985 that the FLSA generally covers state employees. In Alden v. Maine, however, the Court concluded in 1999 that state employees do not have a private right of action to enforce the FLSA’s provisions because Article I of the U.S. Constitution doesn’t permit individuals to sue nonconsenting states for damages in state courts.
Chapter I, Article Four, of the Vermont Constitution provides:
Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property, or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws.
The Vermont Supreme Court has ruled that Article Four is “equivalent to the federal Due Process Clause.” The court has also emphasized that Article Four “does not create substantive rights,” but rather is intended to “ensure access to the judicial process.”
Facts and procedural history
An employee worked for the Vermont Department of Labor (VDOL) from 2010 to 2014. After he was terminated, he sued the VDOL, claiming he had worked 704 hours of overtime over the course of his employment but hadn’t been paid time and a half. He brought claims under 21 V.S.A. § 384(b)(7) and the FLSA, but withdrew the FLSA claim when the state filed a motion arguing it was protected against the federal claim by sovereign immunity. The state then filed a motion asking the court to dismiss the state-law claim. The trial court granted the motion, finding that § 384(b)(7) “plainly exempts State employees” and that Article Four does not give state employees a private right of action to seek damages for unpaid overtime. The former employee appealed to the Vermont Supreme Court.
The employee argued that before 1994, when § 384 was amended, state employees were “statutorily excluded” from coverage under Vermont’s minimum wage and overtime law. He suggested that the fact that § 384 was amended in 1994 demonstrated that the legislature “intended for the State to be accountable to its employees for minimum wage and overtime wages.” That intent, according to the employee, was thwarted by the U.S. Supreme Court’s decision in Alden. He further argued that the FLSA is insufficient as a remedy because “for wronged state employees seeking the wages to which they are entitled by state statute, [the] FLSA effectively does not exist.” To that end, he maintained that despite its plain language, § 384( b)(7) provides state employees a private right of action to enforce the minimum wage and overtime law.
Second, the former employee argued that he could enforce his rights against the state through Article Four of the Vermont Constitution because it provides due process relief for plaintiffs with statutory rights, and state employees have a statutory property right to payment under the minimum wage and overtime law. Further, he stressed that he has no private right of action under the FLSA, and the “only other remedy”—that is, the wage complaint process through the U.S. Department of Labor (DOL)—is insufficient and doesn’t meet Article Four standards for due-process protection. In other words, there must be an Article Four right of action because he has a property right under the minimum wage and overtime law, but no adequate means of enforcing it.
Decision of the Vermont Supreme Court
In a unanimous decision, the Vermont Supreme Court rejected the former employee’s arguments for three reasons. First, the court declined to interpret § 384(b)(7) in a way that would contravene its plain language. The court noted that it’s illogical to convert an express exemption of state employees to an implied waiver of sovereign immunity, particularly since waivers of sovereign immunity must be express.
Second, the court disputed the former employee’s interpretation of the legislature’s intent in 1994, concluding that if lawmakers wanted to ensure state employees had a private right of action to enforce minimum wage and hour rights, they could have explicitly included language to that effect in the law. The court also noted that the legislature could have added such language following the U.S. Supreme Court’s decision in Alden or after Vermont federal courts concluded that § 384(b)(7) doesn’t waive the state’s sovereign immunity. Indeed, the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) has determined that although the exception for state employees “implicitly acknowledges” a legal obligation to follow the FLSA, § 384 “says nothing about how that obligation may be enforced.”
Third, the court concluded that the former employee’s characterization of the FLSA as “insufficient” without a private right of action doesn’t provide a legal basis to supplement § 384. The court observed that supplementing or creating a new remedy for the former employee would “infringe on the lawmaking responsibilities” granted to the Vermont Legislature.
Finally, the court rejected the former employee’s contention that state employees have a statutory property right to compensation under the minimum wage and overtime law. To that end, the court emphasized that Article Four doesn’t “create” property interests in alleged employment rights; instead, it affords an employee a remedy only if he “can show that he has a pre-existing property interest in those employment rights.” Because the court concluded that § 384 provides no such right, the former employee had no recourse under Article Four.
Significance for employers
There are a couple of important takeaways from the Vermont Supreme Court’s opinion in this case:
(1) The court unequivocally held that state employees are generally “covered by” the FLSA and that § 384(b)(7) doesn’t provide employees any minimum wage and hour rights or a statutory private right of action to enforce those rights. The court specifically noted the distinction between being covered by the FLSA and having the right to sue the state as an employer under the FLSA. In other words, although the state has a legal obligation to abide by the FLSA, it’s insulated from being sued for alleged violations under § 384. Instead, an FLSA-protected employee may file a complaint with the DOL, which has the discretion to investigate the complaint and bring an enforcement action against the state. To that end, an employee cannot simply resort to citing coverage by or inclusion in a federal or state statute when challenging an employer; he must also show that the legislature intended to afford him a private right of action.
(2) The court clarified that an employee cannot use Article Four to create a property interest or remedy based on an alleged employment right. There must be a stand-alone statutory or common-law cause of action enabling him to bring a claim.
Lauren Sampson can be reached at email@example.com or 802-864-5751.
Dinse, Knapp & McAndrew announces that twelve of its attorneys were recently selected by their peers for inclusion in the The Best Lawyers in America® 2015 (Copyright 2012 by Woodward/White, Inc., of Aiken, S.C.) in eighteen different practice areas. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
The practice areas and the attorney(s) listed in each area are as follows:
Commercial Litigation: Ritchie E. Berger, Karen McAndrew
Corporate Compliance: David Gurtman
Corporate Governance Law: Brian Murphy
Corporate Law: Jeffrey J. McMahan, Brian R. Murphy
Employment Law – Management: Amy M. McLaughlin, Jeffrey J. Nolan
Immigration Law: Leigh Polk Cole
Litigation – Construction: Karen McAndrew
Litigation – Intellectual Property: Shapleigh Smith, Jr.
Litigation – Labor & Employment: Amy M. McLaughlin
Medical Malpractice Law – Defendants: Ritchie E. Berger
Mergers & Acquisitions Law: Brian R. Murphy
Non-Profit / Charities Law: Brian R. Murphy
Personal Injury Litigation – Defendants: Ritchie E. Berger, Karen McAndrew
Product Liability Litigation – Defendants: Shapleigh Smith, Jr.
Real Estate Law: Austin D. Hart, Molly K. Lebowitz
Tax Law: Mark A. Langan
Technology Law: Jeffrey J. McMahan
Trusts and Estates: Mark A. Langan
Dinse, Knapp & McAndrew is one of the largest and most respected law firms in Vermont and northern New York. At Dinse, client service is our highest priority. For more information, please visit our website at www.dinse.com.
Kienan D. Christianson, Maggie Platzer, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Kienan D. Christianson
When an employer is deciding whether to terminate an employee for poor performance, can it use the fact that she exercised her rights under the Family and Medical Leave Act (FMLA) against her? The U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) answered that question in a recent case, emphasizing that employers must be vigilant about allowing employees to exercise their rights under the FMLA without retaliation or interference.
The FMLA provides broad protections for employees who need to take time away from work to deal with their own or their family members’ serious health conditions. The purpose of the Act is “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.”
The law “entitle[s] employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” Among other protections, the FMLA provides that “any eligible employee” is entitled to return to “an equivalent position with equivalent benefits, pay, and other . . . employment [conditions].”
If an employer violates the FMLA, either by interfering with an employee’s rights under the Act or retaliating against her for taking leave, the employee has “a private right of action to seek both equitable relief and money damages against the employer (including a public agency) in any Federal or State court of competent jurisdiction.” How can an employee prove she was subjected to an adverse employment action because she exercised her FMLA rights? According to the 2nd Circuit, she need only show that her use of FMLA leave was a motivating factor in the adverse decision. That substantially lowers employees’ burden of proof, making it easier to establish FMLA violations predicated on interference or retaliation.
The case before the 2nd Circuit centered on a dispute between a nonprofit and a former employee over the reason for her termination. START Treatment and Recovery Centers provides treatment services to patients addicted to narcotics. Cassandra Woods worked as a substance abuse counselor at START for 10 years before her employment was terminated in mid-2012. The reason for her termination was the critical issue in the case. According to START, Woods was terminated because of her poor performance. Woods believed her termination was actually a pretext (excuse) to retaliate for her use of FMLA leave.
As a substance abuse counselor, Woods was required to meet with and counsel patients. In 2011, START implemented a new state-mandated patient note system. Initially, Woods did quite well implementing the new note system, and her 2010 and 2011 performance reviews were generally satisfactory. However, in March 2011, she began falling behind and failed to satisfy START’s job expectations.
START took a series of corrective actions to help Woods meet the goals necessary to succeed as a substance abuse counselor. Although she temporarily met the required outcomes and received a pay raise, she continued to miss her goals and was eventually placed on probation. While she was on probation, she received a number of warnings indicating that she had to meet her performance targets, but she still lagged behind many of her colleagues at the end of her probation. As a result, in May 2012, she was terminated for “fail[ing] to maintain up-to-date patient notes and [an] ‘on-going failure to perform [her] job duties.’”
According to Woods, however, her termination was predicated on more nefarious grounds. Woods suffers from severe anemia and other conditions, and on several occasions, she requested medical leave under the FMLA. She argued that her FMLA leave was the real reason for her termination.
Woods claimed that in early 2011, she approached an HR employee and requested FMLA leave. But shortly after making the request, she canceled it, citing a discussion she had with a coworker who told her to withdraw her request for leave. In the summer of 2011, Woods was hospitalized for six days as a result of her anemia. At the time, START didn’t provide her a full explanation of her FMLA benefits, although it acknowledged that her hospitalization was covered under the Act.
Later in 2011, while she was on probation, Woods again attempted to take FMLA leave, but a START employee allegedly informed her that she wasn’t eligible for leave while she was on probation. Although she needed to be hospitalized for her anemia, she declined a stay at the hospital, fearing she would lose her job if she missed work.
In 2012, shortly before she was terminated, Woods was hospitalized for another seven days. START acknowledged that this hospitalization was also protected under the FMLA. Soon after she returned to work, START decided to fire her, and her termination took place a week later.
As a result of her termination, Woods sued START, arguing it either interfered with her FMLA rights or retaliated against her for exercising her rights. After a trial, the jury returned a verdict in favor of START. Woods appealed, and the 2nd Circuit overturned the jury verdict and sent the matter back to the trial court for a new trial.
Decision by the 2nd Circuit
A number of issues were presented on appeal, but the issue of particular importance for employers was the burden of proof for an FMLA retaliation or interference claim an employee must satisfy to establish the necessary connection between certain adverse actions and her protected rights. START argued that Woods had to prove that her exercise of FMLA rights was the “butfor” cause of her termination. Woods countered that she only needed to show that her FMLA leave was used as a “negative factor” in START’s decision to fire her. The 2nd Circuit agreed with Woods.
In reaching that conclusion, the 2nd Circuit cited a U.S. Department of Labor (DOL) regulation, 29 C.F.R. § 825.220(c), which provides:
The [FMLA’s] prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no[-]fault attendance policies.
The court noted that it must defer to properly promulgated agency rules. It then held that “given the sweeping scope of [the FMLA’s] prohibition . . . and the absence of any indication of a causation standard, the [DOL] reasonably construed [the FMLA] to prohibit using the exercise of FMLA rights at all in making employment decisions.” The court concluded that the correct standard for FMLA retaliation claims is whether the employer used the employee’s exercise of her FMLA rights as a “negative factor” in making the adverse decision. Woods v. START Treatment & Recovery Ctrs., Inc., ___ F.3d ___, 2017 WL 3044628 (2d Cir., Jul. 19, 2017).
Significance for employers
There are a couple of important takeaways from the 2nd Circuit’s decision in this case. First, you need to be judicious when responding to employees’ requests for FMLA leave. You cannot use an employee’s performance issues as a pretext for denying her rights or benefits she’s entitled to under the FMLA. Second, if you are contemplating an adverse action against a poorly performing employee, you must ensure that you don’t consider her use of FMLA leave when you make the adverse decision.
For example, if the decision to terminate an employee is a close call and you consider the fact that she took FMLA leave a negative factor that weighs against her, you risk liability for retaliation or interference with her FMLA rights if you terminate her. Careful documentation of the reasons for your termination decision, accompanied by an acknowledgment that the decision was made irrespective of the employee’s use of FMLA leave, can protect your organization against a future claim that you violated her FMLA rights.
Kendall Hoechst, Amy M. McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Kendall Hoechst
The National Labor Relations Board (NLRB) is a federal agency vested with the power to prevent and remedy unfair labor practices (ULPs) committed by employers. In the past few years, the NLRB has broadly construed employees’ rights to engage in concerted activities and has struck down many employer policies that tend to “chill” protected conduct in a variety of contexts. A recent NLRB decision upheld by the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) suggests this trend is continuing.
Section 7 rights generally
Section 7 of the National Labor Relations Act (NLRA) guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” as well as the right “to refrain from any or all such activities.” Employers are prohibited under Section 8(a)(1) of the NLRA from interfering with or restraining their employees’ Section 7 rights. In short, if an employer’s policy tends to chill, or dissuade, employees from exercising their Section 7 rights, the employer has committed a ULP under federal law.
Even if an employer’s policy or rule doesn’t explicitly restrict protected activity, the rule is considered a violation if:
- Employees would reasonably construe the language of the policy to prohibit protected activity;
- The rule was promulgated in response to union activity; or
- The rule has been applied to restrict the exercise of protected rights.
The employer’s intent is not always relevant.
In recent years, the NLRB has taken special interest in protecting employees’ Section 7 rights and has been interpreting the NLRA more and more broadly, particularly when it comes to employees engaging in “concerted activities.” A recent NLRB decision upheld by the 2nd Circuit suggests that focus will continue, at least for now.
Whole Foods case
Whole Foods Market maintained rules prohibiting any recording in the workplace—including conversations, phone calls, images, and company meetings—without prior management approval. The rule applied to all areas of every store, to employees and managers alike, and to all electronic devices. Two unions representing Whole Foods employees objected to the rule and filed a ULP charge with the NLRB.
A Whole Foods representative testified that an essential part of the company’s “core values” and “culture” is allowing employees the freedom to speak up and speak out on many issues, work-related or not. Annual regional “town hall” meetings are held without store management present, and the comments, but not the identities of the employees who speak, are later given to management. Whole Foods also periodically holds store meetings and team meetings at which employees voice criticism but are not identified so as not to disrupt team harmony.
Furthermore, Whole Foods suggested that its internal processes for termination decisions and meetings at which employees request assistance with issues involving confidential matters, such as financial need, death or illness in their families, or personal crises, would be adversely affected without the no-recording policy. In other words, in Whole Foods’ view, the policy was designed “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue, and an atmosphere of trust.”
Despite the company’s justifications for its norecording policy, the NLRB found that the rule would reasonably be construed by employees to prohibit them from engaging in Section 7 activity. The NLRB reasoned that photography and recording in the workplace as well as work-related posts on social media are protected by Section 7 if employees are acting in concert for their mutual aid and protection and there is no overriding employer interest against such conduct. Furthermore, in many past NLRB cases, photographs or recordings, often made covertly, were an essential element in vindicating the underlying Section 7 right.
The 2nd Circuit upheld the NLRB’s decision, agreeing that Whole Foods’ rule was overly broad. For example, the rule could prevent employees from recording images of picketing or from documenting unsafe workplace conditions without management approval. The court held that the language of the policy could chill employees’ exercise of their Section 7 rights because the rule, as written, wasn’t limited to controlling activities in which employees don’t act in concert.
What does this mean for Vermont employers?
Employers should review any policies that address employees recording activity in the workplace or posting work-related content on social media and consider whether they are open to a broad interpretation along the same lines as Whole Foods’ policy. It doesn’t matter what the potentially good intentions behind the policy are.
The 2nd Circuit noted that not every no-recording policy will infringe on employees’ Section 7 rights, explaining that it should be possible to craft a policy that places some limits on workplace recording that doesn’t violate the NLRA. The court didn’t provide more specific guidance than that general assertion, but it suggested that concerns about patient privacy in a hospital setting or safety policies for reporting unknown visitors could fit the bill.
While it’s possible that the Trump administration may set the pendulum swinging in the opposite direction, the future of NLRB enforcement is uncertain. For now, employers should continue to be wary of implementing or maintaining any policy that, broadly construed, could be seen as chilling employees’ Section 7 rights. The Whole Foods decision signals that the NLRB’s trend of broadly interpreting workplace policies is continuing.
Kendall Hoechst can be reached at firstname.lastname@example.org or 802- 859-7042.
Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Karen McAndrew
Sometimes it’s difficult to tell whether the court is talking about employment law or just old-fashioned “premises liability,” but in the end, that apparently doesn’t make a great deal of difference when it comes to your obligation to provide safe workplace premises. And, as a recent Vermont Supreme Court case shows, you’d better not instruct or invite someone to do something that is just plain dangerous even when the danger is open and obvious to the dude who’s about to do it.
Hector LeClair, who had experience in the construction business, owned a building in need of a new roof. He asked his son, Ricky, who was also in construction, about replacing the roof. Ricky in turn asked his son, Joseph, who was an unemployed roofer at the time, if he was interested in the job, saying it would be “good money.” Joseph took on the job, and Ricky delivered the materials and equipment to the jobsite. Joseph later alleged, however, that his grandfather, not his father, told him what to do.
Several days after having removed the old shingles, Joseph showed up on an October morning to find that an early frost covered the exposed underlayment. He saw the obvious danger and decided he shouldn’t work on the slippery roof. He claimed later, however, that his grandfather told him to get to work. Joseph then climbed a ladder to a porch roof, and from there began to climb on the second story roof when he slipped and fell to the ground, suffering serious and permanent injuries to his head and back. He then sued his grandfather.
The trial court dismissed Joseph’s complaint without a trial, holding that Hector owed no duty to protect someone on his property from a known and obvious danger. At the last minute, Joseph tried to amend his complaint to allege that his grandfather was really his employer, and because Hector didn’t have workers’ compensation insurance, Joseph didn’t have to prove his grandfather’s negligence in order to recover for a workplace injury. He also wanted to include a “common law claim” that, as his employer, Hector had an obligation to provide him with a safe workplace. His grandfather opposed this attempt on a variety of grounds, among them the late-in-the-day filing of it. The trial court didn’t allow the amendment, so the case proceeded to the Vermont Supreme Court.
Over the strenuous dissent of two members of the court, the majority managed to find a means by which Joseph’s case could proceed to trial. Most of the ink was spilled on the “premises liability” issue, not the employment claim, but there is considerable overlap, and particularly if you own your workplace premises, the decision deserves some attention.
Traditionally, the law made distinctions among categories of visitors—employees, “business invitees,” “licensees,” and trespassers—and the duty owed to a person coming on the premises depended on the category into which that person fell. Distinctions among employees, business invitees, and other visitors have now largely disappeared, however—and even some trespassers may now be owed some measure of care if the property owner has reason to know that trespassers are likely to come onto the premises and encounter danger. In general, the duty is to protect against or warn visitors of latent or hidden dangerous conditions on the premises.
Until now, however, there has not been a duty to warn of open, obvious dangers. And in general, a visitor who voluntarily assumes the risk of an open and obvious danger has no claim against the landowner for injuries that result from that activity. (It was largely those principles that drove the dissent to argue that Joseph shouldn’t recover for climbing onto the roof that he knew was slippery.) So how does all of that play out among the LeClairs?
Because Hector hadn’t claimed that Joseph “assumed the risk” of climbing on the icy roof—concentrating instead on the question of whether he owed any duty to him in the first place—the supreme court also turned its attention to the question of whether there was a duty to protect against or warn Joseph about the slippery roof. The answer would appear to be obvious, as Joseph had admitted that he observed the condition, knew it was dangerous, and decided to “risk it,” after first having decided it was a bad idea.
However, the court pounced on an exception to the general rule, which notes that there are cases in which the owner or possessor of land “should anticipate that the dangerous condition will cause physical harm . . . notwithstanding its known or obvious danger” or has reason to understand that the visitor will “fail to protect themselves against” the danger. That exception prompted the court to focus on the testimony from Joseph that Hector ordered him to get to work, despite the frosty condition of the roof. The court posited that a worker in that situation might feel compelled to do the work despite the danger or risk losing his job. And that was enough for the court to send the case back to the trial court for a jury to determine whether Hector did in fact order Joseph to work on the icy roof and, if so, whether he should have anticipated that his grandson would be injured.
The court then went on to consider whether to add— when the case got back to the trial court—Joseph’s claim that his grandfather was his “employer” and whether Hector had an obligation under the circumstances to provide him with a safe place to work. That duty has now been established in a statute, but because the statute doesn’t provide an employee a basis to assert a claim against the employer, Joseph had to rely on the duty that developed under the common law.
Hector argued that he wasn’t Joseph’s employer because Ricky had engaged him to do the work and supplied the materials and equipment. Joseph argued, on the other hand, that his grandfather was the one who “controlled” the work, was present on the premises, and ordered him to get to work.
Although the definition of “employer” under Vermont’s workers’ comp statute is broader than this, the court agreed that, for these purposes, the “right to control” is the essential determinant of who is an employer but noted that can’t be true where the “proposed employee” has specialized knowledge that the “proposed employer” doesn’t have. Where that is the case, other factors become relevant, such as who supplies the tools and equipment, whether the work is “by time or by job,” whether the work is part of the regular business of the employer, and so on.
In this case, the court said that because there were so many conflicting facts and allegations, a jury should have been allowed to sort them out, so it sent the case back for trial on Joseph’s original complaint as well as his amendment.
And the moral is?
Is there at least something employers can learn from this? Perhaps.
First, to state the fairly obvious, it’s not a good idea to instruct, or even ask, anyone working on your premises— employee, independent contractor, or otherwise— to engage in something that is obviously dangerous, even if you think the danger should be understood by the worker.
And second, it’s not as easy as defining your duties to provide safe working conditions by whom you consider to be your employees. Don’t assume that because an independent contractor is working on your premises that you have no duty to provide a reasonably safe place to work or to warn of hidden or latent defects.
Faced with a complaint, employers tend to say, “They were making it up.” But that’s not usually the case; the employee generally has a “good-faith belief” that he is right. And that’s all that’s required legally. The complainer doesn’t have to be right about the complaint.
Cultivate culture of criticism that leads to loyalty
Employers already understand the need for policies that don’t merely prohibit discrimination but also prohibit retaliation and the adverse treatment of whistleblowers. But it isn’t enough to just inform workers that they are protected from retaliation. Instead, companies should create a culture that supports internal criticism across the spectrum of issues, large and small. Whistleblowing can either increase cooperation and reduce selfishness within the group or increase dissent and denigration. The difference comes down to group culture.
Organizations looking to reduce the threat of retaliation lawsuits should consider creating a culture that welcomes criticism. The thought is that if you encourage employees to blow the whistle internally and your company views dissent as a good thing (i.e., it makes the company better), loyalty is enhanced, and whistleblowing to an outside entity such as the EEOC becomes less likely.
Part of that effort should include strong, well-publicized policies that encourage internal reporting of potential violations or wrongdoing. But it should also include training supervisors on how to welcome criticism and avoid retaliation toward subordinates who speak up, in addition to conveying other messages that highlight the value of internal constructive criticism.
Make whistleblowing ‘less noble, more normal’
If an employee’s whistleblower or retaliation claim heads to court, you might benefit from evaluating your complex feelings toward the whistleblower. You may not want to explicitly play the loyalty card because blaming the employee for breaking ranks may seem to reinforce his argument that your company had a retaliatory motive. Instead, seek to normalize the act of whistleblowing.
If your company has embraced a culture of criticism, you should be able to point to several features of your policies and culture that don’t just allow whistleblowing but positively encourage it. The ability to prove that such a culture exists permits you to suggest that whistleblowing isn’t a uniquely noble act on the employee’s part but instead is something you expect of all your employees. The fact that a claim was made means you need to take it seriously, but it doesn’t mean you retaliated against the employee.
Ultimately, the complexity of our views of whistleblowers is a reminder that employment decisions and court cases aren’t just about claims, evidence, and the law. They are also about perceptions and a story and how each of the parties fits within that story’s moral frame.
Questions your company should ask
Finally, ask yourselves these questions:
- Are we clear and honest about what we want?
- Are we encouraging “dissensus”? (When discussion, criticism, and reporting are part of your job and part of your culture, it’s harder to get worked up.)
- Is whistleblowing normalized?
- Are we aiming to keep it nonpersonal?
- Are we consistent?
- Do we follow through? (Employees need to see that the complaint process is followed).
- Do we publish outcomes (“We investigated and corrected” or “we found no violation but see the need for more training.”)
- Do we properly implement whistleblower discipline? (Yes, you can impose discipline on someone who is a whistleblower, but only with care.)
Karen McAndrew can be reached at email@example.com or 802-864-5751.
Karen McAndrew, Kendall Hoechst, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Karen McAndrew
Work-life balance is a topic much on the minds (and tongues) of employees these days, and how employees’ concerns about balancing their personal and professional lives affect business operations is correspondingly on the minds of HR professionals and senior managers. Flexibility in scheduling (i.e., “flextime”) is a tool that, when used creatively and managed well, can convey that you recognize your employees have lives and competing demands on their time outside the workplace. How you implement flextime in your workplace will determine whether it’s successful—resulting in a happier, more productive workforce with a high retention rate—or not—leading to grumbling, resentment, and high turnover.
Legislation as a starting—but not stopping—point
Vermont has certainly been at the forefront in terms of family-friendly employment laws, enacting protections for employees that include:
- Parental and family leave that’s more widely applicable than the federal corollary (the Family and Medical Leave Act, or FMLA);
- Short-term family leave to attend a child’s school activities or take a parent, child, or spouse to routine medical and other professional appointments;
- Limited paid sick leave;
- Town meeting leave;
- Workplace accommodations for nursing mothers; and
- Employer obligations to consider in good faith employees’ requests for flextime.
Paid maternity leave has also been under consideration by our legislature, although it hasn’t yet been adopted.
Those legislative enactments haven’t always been welcomed by employers—particularly small employers, which are so ubiquitous in Vermont—because they can be seen as impositions on productivity and the bottom line. But instead of viewing family-friendly legislation and flextime as an impediment to management’s objectives, some employers are beginning to think that there’s a more positive way to think about accommodations, particularly when they’re used creatively for hourly and “blue-collar” workers, who may be the most negatively affected by rigid workplace schedules.
Companies, both big and small, have come to realize that flexibility in accommodating employees’ scheduling needs doesn’t just benefit employees. It may prove beneficial in building a stronger and more loyal workforce, which in turn can boost productivity and reduce turnover, with all its related costs. It’s worth thinking about.
Social change means blue-collar work has changed
When many of us hear the term “blue-collar workers,” we conjure images of men (yes, men) wearing overalls and carrying metal lunch pails as they pour out of the factory gate at the sound of the shift-change whistle. And then, if we’re old enough, we picture those men going home to wives in dresses and heels, putting a family-style meal on the table as two or three young children grab their chairs. The men punch the time clock day after day, while the women stay home to manage the family. But that’s a nearly nonexistent profile these days.
Of course, as we hear almost daily from politicians of all stripes, many of those factory jobs have been usurped by robots or moved out of the country. At any rate, a lot of the jobs that remain wouldn’t be recognizable to those guys in overalls. And chances are, the average hourly worker’s family life is even less like it used to be.
Today’s workers (both men and women) are just as likely to be carrying the baby’s lunch as they detour to the day care on their way to work in the morning after discussing with their spouse or partner which one of them will leave work in a rush at the end of the day to pick up not just the baby but the groceries and the mail, and then maybe take an older child to soccer practice before heading home to put a hastily assembled meal together. Moreover, a large percentage of workers are without a spouse or partner and must do all those things single-handedly at the beginning and the end of the day.
Managing time off by minimizing it
If wages had risen as rapidly as family life has changed, the pressures on blue-collar workers might not be so severe. But in this long stretch of relatively flatlined wages, having to take a half day of compensatory time off (CTO) to meet the cable installer or cover a delayed school opening or address some other situation not covered by short-term family leave can mean that CTO is eaten up before the summer. That may mean the employee has to use unpaid leave for all or a portion of a planned summer vacation with her family, which cuts further into their already stretched budget.
If you’ve long had a rule requiring CTO to be used in half-day or larger segments, it may be worthwhile to consider whether that’s really necessary. Is your only basis for the requirement the perceived inconvenience of scheduling or accounting for workers’ CTO in smaller blocks? Perhaps there’s a software program that would help you manage a more flexible system without enormous disruption to payroll processing. And you might find the cost offset by what you gain when employees take less unpaid (and often unplanned) time off.
Allowing employees to take time off in one- or two hour segments might not only be a very welcome benefit for them but may also mean that they spend more time on the job, benefiting the company as well.
What about flextime?
The irony in many workplaces is that salaried workers, who may be far less financially stressed than hourly workers, are generally afforded a great deal more flexibility in terms of work hours and schedules than the time-clock-punching hourly workforce. If rigid fixed hours are just a historical legacy, rethinking ways in which you might accommodate more flexibility for your hourly workers could do a lot to foster your reputation as a family-friendly place to work.
Consider whether it’s really necessary to have every hourly worker show up and depart at the same time. Might you actually increase productivity (and still have adequate coverage during the busiest time of the day) if you allow some workers to arrive an hour or two before the normal start time and leave an hour or two before the closing bell, and others to do the reverse? Chances are, some of your salaried workers are coming in early or staying late, so the relatively insignificant impact that offering scheduling flexibility might have on your overall operations would be minimal. But the corresponding benefit to your hourly workers who could be home in time to meet the school bus might be game-changing. Conversely, a retail or food-service operation in a downtown location might consider opening at the regular time with only part of the staff, but having everyone on board over the busy noon hour, and then decreasing staff as business begins to wind down in the afternoon.
Flexible scheduling might at first glance sound like a manageable concept in a small operation at which individual jobs are less compartmentalized, employees have to cover whatever needs to be done (and cover for each other during unexpected absences and vacations), and shifts aren’t rigidly structured. But we’ve been reading more and more about larger, traditionally shift-based workplaces embracing (or at least accepting) the idea that their business model might be dated.
Hospitals and other healthcare organizations in particular have faced chronic nursing shortages in recent decades, and many have adapted by offering nurses an alternative to the regular 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:00 p.m., or 11:00 p.m. to 7:00 a.m. shifts on the same days (or nights) each week. Nurses now may work four days on and two days off, three days on and one day off, or any other combination that allows their employer to cover patient care but accommodates their own individual needs.
Other large employers are headed in the same direction. The Container Store, a large national retailer of home storage and organizing solutions, has held onto its long-standing place on the Fortune 100 list of Best Places to Work by promoting its “employee-first” culture not just in theory but in practice. Central to preserving that culture is a major investment in training both supervisors and employees, not just in the mechanics of their jobs, but also in the importance of communicating with one another about all aspects of their work, including work schedules.
The company hires many part-time employees for a variety of positions and works with them to accommodate their scheduling needs, which may change over time. For example, a student who works part-time may be able to work mornings and one afternoon during one semester, but she may be available to work weekday afternoons and one weekend day during the next semester. She knows that she can approach her supervisor about changing her schedule without trepidation, and the supervisor knows that she can retain a reliable employee by adjusting the schedule to fit the employee’s needs. The benefits of retaining already-trained (and appreciative) employees have proven to far outweigh the costs of constantly recruiting and training new employees.
Consistency and communication are essential
Flextime may sound like an employee-friendly idea, but when “flexibility”—i.e., unpredictability—is imposed from the top down, it can translate to instability or uncertainty for employees, particularly for blue collar workers who live close enough to the edge financially that predictability is highly valued. For example, if schedules are subject to change, especially at the last minute, the impact on workers with childcare obligations may be severe. Or if shifts are subject to a bidding process with relatively short notice about the availability of extra shifts, workers with outside obligations may be precluded from competing for the extra time.
Advertising jobs with the assurance that extra hours are often available or telling current employees that they have the opportunity to earn more by taking extra shifts may prove to be an empty promise if management doesn’t provide sufficient notice of those opportunities, or if the message is conveyed, however subtly, that declining the opportunity to work extra shifts is an impediment to advancement.
Bottom line: Employee retention is its own profit center Exempt employees, by definition, have some schedule flexibility built into their jobs.
Exempt staff can often manage their own hours, provided they get the job done and are present and available on-site as required. Working remotely and telecommuting is no longer a novelty for exempt employees. Most blue-collar workers don’t have those options, however.
That disparity can be dispiriting to hourly workers, who have just as many outside obligations and just as much need for work-life balance as their exempt coworkers, but far fewer options for maintaining that balance and managing those obligations. The more management can do to foster communication that leads to creative, thoughtful workarounds to those outside pressures, the more likely it is that hourly workers’ productivity, satisfaction, and loyalty will increase and employee turnover will decline.
The author can be reached at firstname.lastname@example.org or 802-864-5751.
Jeff Nolan, Maggie Reynolds, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Jeff Nolan
In January 2017, a three-justice panel of the Vermont Supreme Court issued an order upholding an Employment Security Board ruling that a former ski resort employee was temporarily disqualified from receiving unemployment compensation benefits because he was fired for misconduct connected with his work. While three-justice orders aren’t formal precedent, the facts of the case are interesting, and the decision does provide some insight into how the court applied the law to those facts. The circumstances of the case also may inspire those of you in the service and hospitality sectors to consider the adoption of a “consumer review response” policy.
In Vermont, if an employee is fired, he can and often does apply for unemployment compensation benefits. If the employer disputes the claim, it’s considered within the Vermont Department of Labor (VDOL) by a claims adjudicator. Any appeals are considered by an administrative law judge (ALJ) and the Employment Security Board. Claims adjudicators and ALJs typically hold fact-finding conferences by telephone, and the board typically holds in-person hearings. If someone isn’t happy with a decision of the board, the decision can be appealed to the Vermont Supreme Court.
It has been our experience that applications for unemployment compensation are routinely granted, even if the discharge was well justified and supported by clear evidence. Usually, a substantial record of progressive discipline and relatively strong evidence of misconduct are necessary before a former employee can be denied unemployment benefits.
In the following case, the court’s legal analysis began by quoting the pertinent statutory section, which provides that an employee may be disqualified from receiving unemployment compensation benefits for a specified period if he has “been discharged by his . . . last employing unit for misconduct connected with his . . . work.”
The court emphasized that this standard is higher than the threshold necessary to justify a discharge, stating, “The fact that misconduct may support a discharge does not necessarily mean that the same misconduct disqualifies an employee from receiving unemployment benefits.” This is because, according to the court, it “has defined misconduct sufficient to constitute disqualification under [the relevant statutory provision] as substantial disregard of the employer’s interest, either willful or culpably negligent.” The court maintains that “culpable negligence connotes something more than mere negligence or errors in judgment.” To further complicate matters for employers, the court has held that the employer “has the burden to establish misconduct by a preponderance of the evidence.”
The circumstances of the case discussed below should be evaluated in light of this relatively high standard.
John Tansey worked for 2½ years as a bartender for the Mount Snow ski resort before he was discharged in January 2016. According to the court, he had received a written warning in August 2015 for making a guest feel unwanted and was told that any further behavior of this type could result in termination of his employment.
In early January 2016, Mount Snow became aware of a TripAdvisor review indicating that Tansey had been rude to the reviewer and her friends when they ordered drinks late one evening. Based on this review and the previous warning, Mount Snow discharged him from his bartending position.
A few days later, Mount Snow hired Tansey as a snowboarding instructor. Approximately one week after beginning his instructor job, he informed Mount Snow’s director of food and beverage that he had “contacted the TripAdvisor reviewer and told her that he had been fired because of her review and that she needed to think twice before placing such a review again.” Reportedly looking to get his bartender job back, he informed the director of food and beverage that the reviewer had removed her review after he contacted her. Upon learning this, Mount Snow’s HR director discharged Tansey again, this time for contacting the TripAdvisor reviewer without obtaining Mount Snow’s permission.
In seeking unemployment compensation benefits, Tansey reported to the VDOL that he had been fired because of a complaint on TripAdvisor, but he denied being rude. Based on this information, a claims adjudicator determined that he was entitled to unemployment benefits because Mount Snow had failed to demonstrate sufficient grounds to constitute misconduct.
Mount Snow appealed to an ALJ, who determined that Tansey was temporarily ineligible to receive unemployment benefits because the company had demonstrated he was “fired for misconduct connected to his work.” He appealed to the board, which agreed with the ALJ’s decision. He then appealed to the Vermont Supreme Court.
On appeal to the Vermont Supreme Court, Tansey made a variety of fact-based arguments, including a claim that his discharge was in retaliation for a workers’ compensation claim he made in 2013 and claims that Mount Snow’s HR director made false representations on factual issues during the VDOL proceedings. The court rejected the retaliation claim out of hand because it was raised too late—arguments can’t generally be raised for the first time on appeal. It also rejected the fact-based claims because the applicable standard of review required it to “uphold the Board’s decisions unless it can be demonstrated that the findings and conclusions were erroneous.” In applying this standard, the court emphasized that “as long as there is some evidence to support the findings of the Board and the ALJ, we must accept those findings even if based on the testimony of a witness that [the appealing party] asserts was lying.”
The court found that there was sufficient evidence to support the board and ALJ findings in the case. It noted that Tansey didn’t argue his action in contacting the TripAdvisor reviewer was an “error in judgment” or “mere negligence”—that is, the type of conduct that might justify a discharge, but not a disqualification from unemployment compensation benefits. The court observed that the board determined this conduct was sufficiently inimical to Mount Snow’s interest to constitute misconduct temporarily disqualifying him from unemployment compensation benefits.
On the important issue of progressive discipline and a notice against further misconduct of the same sort, the court emphasized that the company had demonstrated its concern about conduct toward guests when it warned Tansey after the earlier rudeness incident. As a result, it “acted appropriately when it reacted to [his] contact with the [TripAdvisor] reviewer to complain about the review and its consequence for him.” Using these observations, the court found no basis to overturn the board’s determination that his conduct substantially disregarded Mount Snow’s interest. Tansey v. Department of Labor (Mount Snow, Ltd., Employer), 2017 WL 262042 (non-precedential Entry Order, not reported in A.3d).
On the unemployment compensation law front, this decision illustrates the importance of documenting performance problems. If misconduct is repeated and a discharge results, documentation provides at least a higher likelihood (but no guarantee) that the employee will be disqualified from unemployment compensation benefits, at least if the misconduct is willful, culpably negligent, and sufficiently inimical to the employer’s interest to meet the applicable standard.
On the “navigating social media” front, the circumstances of the decision suggest that employers in the service and hospitality industries should consider adopting a social media review response policy that advises employees not to contact social media reviewers directly and requires that employer approval be obtained before posting a response. To use the social media platform highlighted by this case, TripAdvisor has detailed suggestions and guidelines for management responses to reviews (www.tripadvisor.com/TripAdvisorInsights/ n2428/how-add-management-responses-tripadvisortraveler- reviews).
Those guidelines provide that management responses will be posted only if they fall within specific parameters (e.g., they should be professional and respectful). Obviously, if an employee is appearing to speak for a service- or hospitality-based business, the company would want to have control over how the postings could affect the company’s brand, positively or negatively.
This decision indicates that the reviewer at issue chose to remove her review after being contacted by Tansey, but it’s also easy to imagine that an already unsatisfied reviewer could react to such contact by posting a much more negative review and by posting extensive commentary on the issue on other social media. If, for example, a negative personal attack on a reviewer went viral, that could have very significant brand implications. Having a policy that seeks to prevent such posts from being made in the first place, serves as the basis for employee education on the topic, and provides a clear basis for discharge if the policy is ignored could very helpful.
Jeff Nolan can be reached at email@example.com or 802- 864-5751.