Labor & Employment Developments Blog

Most companies that have employment policies use some form of progressive discipline.  That is fine if it’s done the right way.  Unfortunately, in my practice I run across poorly executed and applied progressive discipline policies with alarming regularity.  Here are some thoughts on this subject that are all based on hard lessons learned by employers that I have represented.

I have been following a case concerning an employer’s obligation to protect employee data that has now come to a conclusion with two Ninth Circuit decisions.  Krottner et al. v. Starbucks arose from the 2008 theft of a laptop that contained the unencrypted names, addresses, and Social Security Numbers of approximately 97,000 Starbucks employees.   

You may recall my post from a couple months ago about Brett Favre’s alleged harassment of a New York Jets employee, Jenn Sterger.  The NFL has completed its investigation and has been unable to substantiate any allegations that Favre violated league policies.  However, the commissioner did conclude that Favre failed to cooperate with the investigation and was less than candid so he fined him $50,000, which is pocket change to Favre.  I was not going to bother commenting on this sorry spectacle until I happened to hear ESPN’s “legal analyst” on Sportscenter this morning.  The analyst, who shall remain nameless, expressed the following opinions: 1) Sterger could sue Favre and the Jets, although there might be some statute of limitations issues; 2) Favre could be considered her supervisor because he was higher up the chain in the Jets organization than Sterger; and 3) if Sterger were to file suit, her case would likely get to a jury.  The only question I had after hearing this was how can I get an analyst job at ESPN because I can do better than this.   

I read with interest the news reports of the recent lawsuit filed against the University of Kentucky by an Astronomer who claims that his religion cost him a job.  

This weekend Cam Newton, the quarterback for Auburn University, won the Heisman Trophy.  For those of you who do not follow college football, the Heisman is an award given to the most outstanding player in collegiate football each year.  If you do follow college football, you are probably aware that this year’s award carries with it a scandal based on claims that Newton's father tried to get another college to pay $180,000 for his son to play for them.  Although it has suggested that its investigation is on-going, the NCAA so far has found no evidence that Cam Newton or Auburn knew about his father’s scheme.  Cam Newton has denied any wrongdoing, although he does have a past history of brushes with the law.  Not surprisingly, this situation generated a lot of discussion about whether Cam Newton is worthy of the award. 

This week the Sixth Circuit issued an opinion in Jakubowski v. The Christ Hosp., Inc. affirming a district court’s decision to grant summary judgment in favor of the employer.  The plaintiff, Dr. Martin Jakubowski, was diagnosed with Asperger’s syndrome, a condition that severely impeded his ability to communicate with patients and co-workers. 

The holidays are here again and they represent a minefield for employers.  It seems that every year the period of time from mid-November through the end of the year is guaranteed to generate employment litigation. 

Consider this scenario – a male manager tells his female subordinate that he is requiring her to allow a third party to take nude pictures of her but if she prefers, she can instead elect to be groped by a total stranger.  This is part of her job and if she refuses she could be terminated or face other adverse action, e.g. discipline or demotion.  That manager should be fired immediately, you say?  How about this scenario: a male manager tells his female subordinate that he is requiring her to take a commercial airline flight to visit a customer.  That one happens every day and could hardly be objectionable, or could it?

It’s been a while since I have posted a Labor Law Movie Review and watching 9 to 5 is not something that will make me jump at the chance to do these more regularly.  A little too over the top campy for my tastes, but it does provide some interesting historical perspective.

Today, the Sixth Circuit issued a decision in Bates v. Dura Automotive Systems, Inc. that may appear to be of interest to employers who have or want to implement drug testing programs.  Unfortunately, the decision is of limited use in predicting future outcomes because, among other things, it is extremely narrow and was decided without reference to the ADAAA, having arisen before the amendments took effect.  Regardless, it is worth a look as it will be touted as a win for employers and some may be misled about its significance.