Delaware Employment Law Blog

Religious discrimination can arise in a variety of circumstances. For example, just recently, we posted about a religious-discrimination claim filed by the U.S. Equal Employment Opportunity Commission ("EEOC"), on behalf of four Rastafarians who had been disciplined for their dreadlocks.  In another, fairly unusual, claim of religious discrimination, the issue isn't hair-style choices, though.  This time, the problem is with short shorts.

But not with an employee wearing wearing them.  Instead, the EEOC claims, an employee at St. Louis clothing store, Hollister Co., was terminated when she refused to wear pants or skirts the didn't cover the knee.  She stated a religious objection to the required uniform on the ground that her Pentacostal faith prohibited such attire.

Apparently, though, the employee had no such religious objection at the time she was hired. 

And, although this point is certainly relevant from the perspective of truth-seeker, it's not so relevant when it comes to determining whether religious discrimination occurred.  An employee need not explained what caused him or her to alter conduct based on religious views--or to change their religious views, for that matter.  If faced with a request for a religious accommodation, it does not behoove an employer to start "throwing stones" as it were. 

Instead, unless it is an absolutely obvious contradiction of the employee's otherwise-professed lifestyle, you are best advised to take the employee's word on it.  Just assume that they do hold a sincere religious belief about the issue and focus, instead, on the viability of the request.

**The irony in this claim can't go unnoticed by the Human Resource generalists in the world who spend such an inordinate amount of energy working towards eradicating short shorts in the workplace, which, I am certain, many would argue is a religious mission in its own right.  Of course, the NYT, this summer, published an article claiming that the "man-short" (pictured above), was making its way to the "acceptable attire" list in corporate America.  Let me know how that works out.**

Previous posts on religious discrimination and dress codes include:

EEOC Files Religious Discrimination Lawsuit on behalf of Sikh who refused to remove turban

What Not to Wear to Work: More Style Rules for the Modern (Gen Y) Worker

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

EEOC Sues over Dreadlocks, Claiming Religious Discrimination

Employers must recruit and retain Generation Y employees to stay current in the rapidly evolving workplace.  Equally important is the ability of employers to engage and utilize its older workers.  Employers are scrambling to find ways to harvest the knowledge of older workers before being faced with the impending brain drain.  All around, it's in the best interest of employers to provide a workplace that will attract older workers.   

These factors make the AARP's recent award, 2008 Best Employers For Workers Over 50, particularly timely.  Cornell University topped the list and was recognized for its health and wellness programs, which include health screenings and counseling, multiple fitness centers, as well as group nutrition and aerobics classes.

On its website, the AARP has published a helpful summary of the features common to the 50 winners. 

[H/T to the Aging Workforce News Blog, which consistently publishes timely and helpful information on issues facing employers as they deal with new generational challenges.]

MySpace and Employment Law have crossed paths again. This time, they intersect, again, in education law. But this isn’t the first time.

You may remember Stacy Snyder, the "Drunken Pirate,” who, at the time, was a student in the Education program at Millersville State University.   In a moment of poor judgment, Snyder posted a photo of herself in a pirate hat, drinking, captioned "drunken pirate" on her personal MySpace page.  School officials  learned of the photo and refused to give Snyder a teaching credential because they believed the picture promoted underage drinking. 

Alas, another teacher has fallen prey to MySpace.  A federal District Court in Connecticut has upheld the decision of a school board in that State, which voted to not renew a teacher's contract because of content posted on his MySpace profile. The court found that the non-renewal decision did not violate the teacher’s constitutional rights to Free Speech or Free Association. 

A high school teacher, Jeffery Spanierman, apparently created a MySpace profile, which he used to communicate with students.  The discussions concerned a mix of topics, some of which were unrelated to the school.  Of course, Spanierman's venture into the world of social networking soon came to the attention of the school administration.   An administrator viewed the profile and believed it contained inappropriate comments and "peer-like" discussion with students.  Spanierman deleted the profile after these concerns were brought to his attention. 

But the lure of the social networking site proved to strong for Mr. Spanierman to long resist.  Shortly after deleting the original profile, Spanierman created a second one.  After learning of the second profile, Spanierman was placed on an administrative leave.  Ultimately, the school district decided not to renew Spanierman's teaching contract.   Spanierman filed suit against the school district and various individual officials alleging several violations of his constitutional rights.  In particular, Spanierman claimed that his rights of Free Association and Free Speech had been breached.

The District Court rejected Spanierman's arguments. Although the court determined that Spanierman was not acting pursuant to his official duties as a teacher in maintaining the MySpace page, it found that the page's content did not deal with matters of public concern.  The sole exception to this was a short poem on the Iraq war.  But there was no evidence that any administrator retaliated against Spanierman for expressing his views on that conflict in verse.  The Court went on to note that the school district would likely have been able to demonstrate that Spanierman's "speech" would have been sufficiently disruptive so as to outweigh any the First Amendment value it possessed.

The Court also rejected the teacher's free association claim.  MySpace may be a social networking website, but here, there was “no evidence in the present case that MySpace, as an organization, purports to speak out on matters of public concern.”

Off-duty conduct as grounds for termination is a common topic in employment law. It is not uncommon for employers to include "morals clauses" in employment contracts. And social-networking sites are not the only forums in which employees are getting "busted." You may remember the recent scandal involving not the internet, but a local newspaper, which ran unfavorable photographs of the then-president of the community college engaging in off-duty conduct that reflected negatively on his leadership and judgment. Robert Paxton, resigned after the paper published a photograph of him pouring beer into a young woman’s mouth.

Companies will not risk their reputations on drunken pirate escapades or inappropriate MySpace relationships. Few states offer protection under the law for employees' off-duty conduct. Delaware is not one of those states--employers have full authority to determine what actions constitute "bad behavior," and can result in termination. 

Labor and employment law attorneys, much like Human Resources generalists, have to be able to take a joke.  So how would we characterize Search #52, which was one of the Google searches that led a reader to the Delaware Employment Law Blog?  I mean, generally we don't encourage supervisors to write a bad evaluation, as much as we hope they will write a fair one. Well, at least it's being written!

Work rules for dress code are not out of fashion just because the season has changed.  Instead, the topic of "What Not to Wear to Work" is as trendy as ever.  So, for those of you charged with the task of enforcing dress codes and monitoring hem lines, here's a bit of reassurance that you are not alone.   

Four security guards at NYC's Grand Central Station were disciplined when their "sloppy-looking" dreadlocks did not fit under the uniform-standard caps.  Three of the four were suspended for their refusal to comply with their employer's demand that they come to work "with their hair properly cut."  The fourth shaved his beard after being told that failure to do so would result in his termination. 

The EEOC filed suit on behalf of the public safety officers against the Grand Central Partnership alleging religious discrimination--the employees are Rastafarians.  The matter appears to have been resolved, though.  The partnership recently agreed to provide custom-made hats to each of the officers so they could tuck in their dreadlocks.

OSHA's Bloodborne Pathogens Standard is common to many of you.  Workers in a variety of different occupations are at risk of exposure to bloodborne pathogens, which also includes exposure to Hepatitis B, Hepatitis C, and HIV/AIDS.  Employees in healthcare, housekeeping, health clubs and gyms, dentistry, funeral homes, law enforcement, and first-aid and emergency responders are some of the most commonly affected. 

OSHA issued the Bloodborne Pathogens Standard ("BPS"), in 1991.  BPS was intended to protect workers from the risk of exposure to bloodborne Pathogens and, in turn, to the associated viruses.  In 2001, in response to the Needlestick Safety and Prevention Act, OSHA revised the BPS. The revised standard addressed the need to select safer needle devices and the importance of involving employees in making those selections.  The updated standard also imposes recordkeeping requirements for injuries relating to contaminated sharps.

Pursuant to BPS, employers must identify the job duties or tasks and the job classifications where occupational exposure to blood occurs.  The list must be put into writing and it must not take into consideration whether the employee would likely be wearing personal protective clothing and equipment.  Then, armed with that information, employers must create and implement standards and procedures for evaluating the risk involved in the identified circumstances.  The plan must be accessible to employees and available to OSHA.  The written plan must be revaluated annually, or earlier if conditions require.

In addition to the recordkeeping and procedures-based requirements, BPS also imposes requirements relating to the rights of employees.  Employees must be given training in accordance with BPS requirements.  They are also entitled to receive certain notices, and access to the policies that are being implemented and reviewed.  All employees who risk exposure to hepatitis B must be offered vaccination. 

Finally, BPS also mandates certain procedures in the event of an exposure incident.  Employees must be provided with a post-exposure evaluation and follow-up must be provided to all employees who have had an exposure incident. The follow-up testing must be provided at no cost to the employee. 

Layoffs are happening. And layoffs have lots of implications-morale implications, business and financial implications, and legal implications.  Any time an employer is considering separating one or more employee for lack of work, a whole host of legal considerations are triggered. For employers with at least 100 full-time employees at a job site, one of the most significant is the Worker Adjustment and Retraining Notification (WARN) Act. 

In short, the WARN Act requires employers to give advance notice to employees who will be affected by a plant closing.  Generally, 60 days' written notice is required before closing a plant or implementing a mass layoff.  Failure to comply with the Act can result in serious liability, including back pay and benefits for each affected employee for every day that the notice was not provided, for up to 60 days.  This number can quickly add up to millions of dollars.

Who Is Entitled to Notice?

WARN notice must be provided to either affected workers or their representatives (e.g., a labor union); to the State dislocated worker unit; and to the appropriate unit of local government.

Which Employers Are Covered?

Private-sector profit and non-profit employers who have 100 or more employees are covered.   In determining whether the minimum number of employees has been met, only those who have worked at least 6 months in the last 12 months and who work an average of at least 20 hours per week should be included. 

When Must Notice Be Given?

With three exceptions, notice must be timed to reach the required parties at least 60 days before a closing or layoff. When the individual employment separations for a closing or layoff occur on more than one day, the notices are due to the representative(s), State dislocated worker unit and local government at least 60 days before each separation. If the workers are not represented, each worker's notice is due at least 60 days before that worker's separation.

The exceptions to 60-day notice are:

(1) Faltering company. This exception, to be narrowly construed, covers situations where a company has sought new capital or business in order to stay open and where giving notice would ruin the opportunity to get the new capital or business, and applies only to plant closings;

(2) unforeseeable business circumstances. This exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required; and

(3) Natural disaster. This applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm.

If an employer provides less than 60 days advance notice of a closing or layoff and relies on one of these three exceptions, the employer bears the burden of proof that the conditions for the exception have been met. The employer also must give as much notice as is practicable. When the notices are given, they must include a brief statement of the reason for reducing the notice period in addition to the items required in notices.

What Must the Notice Include?

Notice must be in writing but no particular form is required.  Notice must be specific. 

What Triggers Notice?

Plant Closing:  A covered employer must give notice if an employment site (or one or more facilities units within an employment site) will be shut down, which will result in an employment loss for 50 or more employees during any 30-day period. 

Mass Layoff: A covered employer must give notice if there is to be a mass layoff that does not result from a plant closing, but will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33% of the employer's active workforce.

Cumulative Layoff:  Even if the first two events do not occur, WARN Act provides still for a third circumstance where notice is required.  If, during a 30-day period, the number of employment losses for 2 or more groups of workers, each of which is less than the minimum number needed to trigger notice, would reach the minimum threshold if they were combined during any 90-day period.  Job losses within any 90-day period will count together cumulatively.

What Is An Employment Loss?

The term "employment loss" means:

(1) An employment termination, other than a discharge for cause, voluntary departure, or retirement;

(2) a layoff exceeding 6 months; or

(3) a reduction in an employee's hours of work of more than 50% in each month of any 6-month period.

Not included as an employment loss is an employee who refuses a transfer to a different employment site within reasonable commuting distance; an employee who accepts a transfer outside this distance within 30 days after it is offered or within 30 days after the plant closing or mass layoff, whichever is later.  In both cases, the transfer offer must be made before the closing or layoff, there must be no more than a 6-month break in employment, and the new job must not be deemed a constructive discharge.

Are There Any Exceptions?

An employer does not need to give notice if a plant closing is the closing of a temporary facility, or if the closing or mass layoff is the result of the completion of a particular project or undertaking. This exemption applies only if the workers were hired with the understanding that their employment was limited to the duration of the facility, project or undertaking. An employer cannot label an ongoing project "temporary" in order to evade its obligations under WARN.

An employer does not need to provide notice to strikers or to workers who are part of the bargaining unit(s) which are involved in the labor negotiations that led to a lockout when the strike or lockout is equivalent to a plant closing or mass layoff. Non-striking employees who experience an employment loss as a direct or indirect result of a strike and workers who are not part of the bargaining unit(s) which are involved in the labor negotiations that led to a lockout are still entitled to notice.

An employer does not need to give notice when permanently replacing a person who is an "economic striker" as defined under the NLRA.

How Long Is the Notice Period?

With three exceptions, notice must be timed to reach the required parties at least 60 days before a closing or layoff.

The exceptions to 60-day notice are:

(1) Faltering company. This exception, to be narrowly construed, covers situations where a company has sought new capital or business in order to stay open and where giving notice would ruin the opportunity to get the new capital or business, and applies only to plant closings;

(2) unforeseeable business circumstances. This exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required; and

(3) Natural disaster. This applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm.

Workplace bullying is not unlawful. The U.S. Equal Employment Opportunity Commission (EEOC), is not stopped by that, though.  It has entered into a consent decree with the State of Oregon, ending a lawsuit involving workplace bullying.  The case, filed by the EEOC on behalf of Sheri Peters, a former juvenile court clerk, was filed under federal employment laws but, at its core, alleged egregious workplace bullying.

Peters claimed that her former boss, the juvenile justice center manager, Linda Simonson, engaged in a variety of hostile conduct towards her subordinates. Peters claimed that, after working at the center for a month, she told Simonson that she was pregnant.  Simonson responded that she felt Peters had concealed her pregnancy to get hired and called Peters at her unborn child "garbage."  When Peters went to the hospital with a ruptured placenta in December 2004, she claimed, Simonson called her and chastised her for being not at work.

Court documents do not paint a pretty image for the center's management style.  Several current and former employees testified about the "bullying conduct" of Simonson who, as one witness described, “managed the department like an abusive parent.”  Another employee reported that she was harassed "relentlessly" by Simonson while out maternity leave.  Another claimed that, while she was pregnant, she was subject to “harassing and intimidating behavior” by Simsonson.  And one employee stated that Simonson was harassing, “cruel and vindictive."

As part of the settlement, Peters will receive $315,000. 

The real lesson here is not about pregnancy discrimination or even gender-based harassment.  The real lesson is about respectful conduct in the workplace.  Employers who fail to recognize that respect is an essential component of every job will eventually have to face the fallout of a distrusting workforce who feels they were thrown to the wolves by the organization that turned a blind eye to bullying and disrespectful treatment by management.

A pregnancy-discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), against a Pittsburgh-area plastic-surgery office has settled  The parties entered into a consent decree, which provides, in part, for payment of $75,000 to Erin Griggle, a former secretary at Premier Plastic Surgery, located in Cranberry, Pennsylvania.

Although no discrimination suit is built on accusations of niceties and cordialities, this case has some particularly harsh-sounding allegations.  According to the complaint filed by the EEOC, a pregnant Ms. Griggle was told to "suck in her belly," because if she didn't, she would scare away patients who went to the facility to "look better."  She was later terminated because "she was not a good fit."  Then, when the center began the search for Griggle's replacement, the center's president was alleged to have asked if the candidate "had a uterus."

As is standard in EEOC consent decrees, the defendant expressly denied any wrongdoing so we'll likely never hear the center's complete side of the story.  But it does beg the question, do people really say things like this?  If you ever hear an employee say anything even close to the statements allegedly made in this case--don't delay.  Act swiftly and effectively to stop the conduct and make absolutely clear that it will not be tolerated under any circumstance.

Jerks at Work.  Nobody likes them.  Everybody knows them.  Jerks at Work are easy to identify--you know one when you see one.  But for managers who want to eradicate the problem of workplace bullying, it may be difficult to identify just what it is that indicates the employee is a legitimate jerk and not just someone having a really bad day. 

To help those who want to make a difference and eliminate the Jerks at Work, here is a list of 15 common behaviors and offenses that indicate that there is a real problem.  

1.  Takes credit for the achievements of others.

2.  Repeats information learned in confidence.

3.  Talks about others in terms of stereotypes.

4.  Tells jokes that make others look stupid or unequal.

5.  Is adverse to any perceived change.

6.  Interrupts others while talking.

7.  Micromanages subordinates.

8.  Fails to keep commitments.

9.  Never volunteers to help coworkers.

10.  Gossips indiscriminately.

11.  Constantly seeks approval from others.

12.  Defensive in response to feedback.

13.  Inflexible with requests by others.

14.  Cannot be found when needed.

15. Places blame when unwarranted.