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HR Resource Blog

This blog is published by the attorneys in Capehart Scatchard’s Labor and Employment Group. On this site, employers and human resources professionals will find useful tips as to how to keep the workplace, and workplace policies, in compliance with state and federal employment laws.
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Chipotle in Trouble Again: Can I Tell My Employee to Delete His Posts on Social Media?

The Facts

James Kennedy was a crew member at the Havertown, Pennsylvania Chipotle restaurant.  On January 28, 2015, Kennedy posted two tweets regarding working conditions of Chipotle employees.  One of the tweets included a news article about hourly employees being required to work on snow days, when other workers were allowed the day off. The tweet was directed to Chris Arnold, communications director for Chipotle, and stated: “Snow day for top performers Chris Arnold?” Kennedy also replied to tweets posted by Chipotle customers by stating “nothing is free, only cheap labor. Crew members make $8.50/hr how much is that steak bowl really?”

Chipotle regional manager, Thomas Clark and general manager, Jennifer Cruz, became aware of Kennedy’s tweets and met with him regarding same. During that meeting, Clark and Cruz provided Kennedy with a copy of Chipotle’s social media policy which contained the following provisions at issue:

  • Provision 1: “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential or inaccurate information.”
  • Provision 2: “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition or investors.”

Upon reviewing Chipotle’s policy with Kennedy, Clark asked Kennedy to delete his tweets and Kennedy complied with the request.

Thereafter, Kennedy became concerned that Chipotle employees were not receiving their work breaks in accordance with applicable state law. Kennedy drafted a petition for employees to sign, advising management that Chipotle employees had been unlawfully denied breaks. Kennedy solicited signatures in the morning before work commenced. When Cruz was made aware of the petition, Cruz told Kennedy to stop circulating it. Kennedy refused. Cruz then told Kennedy to leave and terminated Kennedy for “insubordination.”

The Union (Pennsylvania Workers Organizing Committee) filed multiple charges against Chipotle on Kennedy’s behalf and a hearing took place before the National Labor Relations Board (“NLRB”).  The complaints alleged that Chipotle violated the National Labor Relations Act (“NLRA”) when it maintained an unlawful social media policy, directed an employee to delete tweets from his Twitter account, prohibited that employee from engaging in protected concerted activity and terminated that employee for protected activity.

Analysis

Section 7 of the NLRA protects employees’ rights to engage in concerted activities for the purpose of mutual aid or protection.  The NLRB reviewed Chipotle’s social media policy and found that the policy provisions referenced in the section above were unlawful under the NLRA.  Specifically, the NLRB found that these two policy provisions were overly broad/ambiguous, in that they may reasonably be read by employees to prohibit lawful Section 7 activity and may serve to chill employees in the exercise of their Section 7 rights.[1]

The NLRB found provision 1 (referenced above) from Chipotle’s social media policy to be unlawful because an employer may not prohibit employee postings that are merely false or misleading. An employer may only prohibit employee postings that have been posted with a malicious motive. The NLRB also found that Chipotle’s prohibition against disclosing confidential information was unlawful because it could easily lead employees to interpret it as restriction their Section 7 rights. Moreover, Chipotle’s policy prohibiting disparaging statements was also overly-broad.

In regards to Kennedy’s specific tweets, the NLRB found that they concerned wages and working conditions, which are matters protected by the NLRA. Chipotle’s request that Kennedy delete the tweets was a violation of the NLRA.  As for Kennedy’s termination, the NLRB held that Chipotle violated the NLRA when it directed Kennedy to stop circulating his petition and that Kennedy’s termination was unlawful because Kennedy was terminated due to his protected conduct (refusal to stop circulating the petition).

What does this mean?

Employers must be careful when drafting social media policies and when disciplining employees based upon those social media policies.  The policy must not be overly-broad or ambiguous to allow the possibility that an employee would interpret the policy as prohibiting concerted activity.  Furthermore, before requesting that an employee discontinue activity on social media, a full analysis of the facts should be undertaken by the employer to make sure that the employer’s actions are lawful under the NLRA.

[1] The NLRB has held that ambiguous rules are to be construed against the employer.

Gender Pay Equality: Prepare for Change

Coauthored by Carmen Saginario, Jr., Esq. and Bruce L. Harrison, Esq.

Recent actions at both the federal and state level demonstrate an increased political urgency about addressing perceived gender pay inequality.  This development was highlighted on January 29, 2016 when the EEOC announced a proposal that the EEO-1 form, completed and filed annually by firms employing 100 or more personnel, be substantially revised to include gender pay information.  Speaking in support of this proposal, President Obama pointed to data which shows that the median yearly income for women working full time is only 79% of the median income for full time males.

The text of EEOC’s proposal was published in the Federal Register on February 1, 2016.  In broad brush, the proposed amendment to the EEO-1 form will require employers to report wage by gender in 10 different job categories applying 12 different wage bands.  The data source for these reports are to be Form W-2.  The EEOC has clearly acknowledged that it will use the data collected from the revised EEO-1 forms to prompt investigations of employers and proceed with enforcement actions per their discretion.

There will be a 60 day public comment period on the proposal ending April 1, 2016.  Employer groups are expected to oppose the proposal with opposition based, in part, on the belief that  factors other than gender often trigger pay differentials which will not be shown by W-2 information.  That said, it is believed that after the close of the public comment period, and before the elections in November, a final rule will be published requiring reports beginning September 30, 2017 to include the gender pay data.  Should this happen, a challenge to the rule in the federal courts would be unsurprising.

In addition to supporting EEOC’s initiative, President Obama encouraged states and cities to implement new requirements directed toward addressing gender pay inequality.  Less than a week after the President spoke, New Jersey Senate No. 92 was proposed, with Senate President Steve Sweeney as one of its co-sponsors.  The bill has already passed the Senate and has be sent to the Assembly.

If passed by the Assembly and signed into law by Governor Christie, Senate Bill No. 92 will amend New Jersey’s Law Against Discrimination (“LAD”).  Likely its most important change will be to prohibit unequal pay for “substantially similar work”.  The bill continues to permit different rates of compensation “pursuant to a seniority system” or a “merit system”.  Additionally, Senate Bill No. 92 recognizes that “bona fide factors other than sex, such as training, education or experience, or the quantity or quality of production” may justify pay differences.  However, the “other factors” defense is limited in such a manner as to be of questionable value to an employer.  Most significantly, non-gender factors “must be job related with respect to the position in question and based upon a “legitimate business necessity”.  Business necessity is a well recognized concept in the law and requires its proponent to satisfy a quite high standard of evidence.

There is, of course, a legal history which places these recent initiatives in context.  The principal historical source is the Equal Pay Act (“EPA”) of 1963.  This law amended the federal wage and hour law, the Fair Labor Standards Act (“FLSA”).  Under EPA, an employer cannot pay unequal wages to men and women who perform jobs that require substantially equal skill (experience, ability, education and training), effort (physical and mental) and responsibility, performed under similar working conditions.

In passing EPA, the Congress explicitly rejected pay equality based upon what is known as “comparable worth”.  Under this doctrine, men and women who perform work of the same value to the organization should receive identical pay, whether or not their jobs are at all similar in content.  Neither the revision to EE0-1 nor Senate No. 92 appear to go as far as incorporating the doctrine of comparable worth.  However, in 2015, in H.R. 1619 and S. 862, in bills captioned the “Paycheck Fairness Act” (“PFA”), attempts were made to minimize the affirmative defenses to the EPA.  The PFA did not pass in either the House or Senate, but on January 29, 2016, President Obama stated his support for it.

While H.R. 1619 and S. 862 are more broad in overall in scope than Senate Bill No. 92, there is a basis to believe that those federal bills served as the seed for the New Jersey proposed legislation.  Simply stated, the two federal bills and Senate Bill No. 92 seek to restrict defenses available to employers which are provided for in the EPA.

It is probable that both the federal and state path forward will be impacted by the 2016 federal election and the state elections next year.  That said, it is reasonably likely in the foreseeable future that New Jersey employers will be required to comply with a new and enhanced standard for gender pay equity.  An uptick in gender pay litigation claims will almost surely follow. Whatever the future holds, New Jersey employers should consider reviewing their own payrolls and check whether anything jumps out at them regarding pay differentials between their male and female workers.  It is probable that legislative changes are coming from state and /or federal authority, and being ahead of this issue might be wise.

Access to Personnel Files in Pennsylvania and New Jersey

By Laurel B. Peltzman, Esq.

You have just terminated your most problematic and least productive employee. The employee leaves the premises immediately after his termination but then returns a few hours later with a request. He wants to review his personnel file. As an employer that terminated this employee just a few short hours ago, are you required by law to allow the former employee to review his personnel file? It depends.

In the recently decided case of Thomas Jefferson University Hospitals v. Pennsylvania Department of Labor and Industry, Bureau of Labor Law Compliance, No. 2275 C.D. 2014 (Pa. Commw. Ct. Jan. 6, 2016), a Pennsylvania court interpreted a specific provision of the Pennsylvania Personnel Files Act and found that it provides  recently terminated employees with the right to review their personnel files.

In Thomas Jefferson University Hospitals, a week after her termination from employment with Thomas Jefferson University Hospitals (TJUH), Elizabetth Haubrich made a request to inspect her personnel file. TJUH refused to provide her access because Haubrich was no longer employed by TJUH. Haubrich filed a complaint with the Department of Labor and Industry (the “Department”) and the Department directed TJUH to allow Haubrich to review her file. TJUH did not comply and petitioned the Commonwealth Court for review of the Department’s directive.

Under the Pennsylvania Personnel Files Act, “an employer shall, at reasonable times, upon the request of an employee, permit that employee to review his or her own personnel files used to determine his own qualifications for employment, promotion, additional compensation, termination or disciplinary action.” The Act defines an employee as “any person currently employed, laid off with re-employment rights or on leave of absence…” TJUH argued before the Court that Haubrich did not fit the definition of “employee” as provided for in the Act.

The Court began its analysis by reviewing the definition of the word “current” in the dictionary, which is defined as “presently elapsing, occurring in or existing at the present time, or most recent.” The Court ultimately opined that because Haubrich was terminated one week before she made her request to review her file, she qualified as a “presently elapsing employee” or most recent employee, falling within the definition of “current employee” in Act. The Court found that because the Act explicitly allows someone to inspect his/her personnel file to determine the basis for his/her termination from employment, it only makes sense that a recently terminated employee has the right to review his/her file.

In contrast to Pennsylvania, New Jersey does not have any specific laws regarding an employee’s right to review a personnel file. Although there is no specific requirement that employees be allowed to review their personnel file in New Jersey, if an employee makes his/her request in order to prove that the employer has been discriminating against him/her and the employee is found to have been fired for making the request, the employer may be considered to have illegally retaliated against the employee. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988) (holding that Plaintiff can pursue a claim of retaliation alleging that she was terminated because she requested to review her personnel file in order to find documents to support her gender discrimination claim).  Another factor that employers must consider is that refusing an employee’s request to review a personnel file may lead to unnecessary and expensive litigation because an employee may feel like the employer is hiding something (potential unlawful activity).  By providing access to employees, the employer can present an impression of transparency making it less likely that an employee will bring suit.

So what does this mean? If you are an employer in Pennsylvania, your actions regarding current and former employees’ requests to review personnel files are specifically governed by law. If a current employee or recently terminated employee requests to review his/her personnel file, you must allow him/her to do so.  If you are an employer in New Jersey, there is no specific law governing an employee or former employee’s access to his/her personnel file, so an employer must analyze each request on an individual basis to determine the best response.

Can You Enforce Your Arbitration Clause?

The odds are that your company has an employee handbook that governs the workplace.  You also most likely (hopefully) have a clause in your handbook indicating that the handbook does not create a contract between the employer and employee and the terms of the handbook can be changed at any time without notice to the employee.  Since it has become common practice to prefer arbitration over dealing with state and/or federal courts, many of you may also have a section of the handbook requiring arbitration of any employment claims that arise between the employer and the employee.  If this is the case, then the following information is important for you to understand.

A recent published New Jersey Appellate Division decision has upended employment law in New Jersey.  Specifically, the Appellate Division held on January 7, 2016, that an employee handbook that contains a clause stating that the “rules, regulations, procedures and benefits . . . are not promissory or contractual in nature and are subject to change by the company,” and in addition contained an arbitration clause purporting to waive the employee’s right to sue in court, did not in fact waive the employee’s right to file suit in federal or state court.  Without a clear and unambiguous waiver of the right to sue, an employee cannot be forced to arbitrate.

The case, Morgan v. Raymours Furniture Co., Inc., Dkt. No. A-2830-14T2 (App. Div. Jan. 7, 2016), involves a former employee of Raymours Furniture Company (“Raymours”) who instituted a complaint in state court alleging violations of the Law Against Discrimination and wrongful termination.  Initially when the employee first complained of alleged discrimination, the employer attempted to have the employee sign a standalone arbitration agreement or face termination.  When the employee refused to sign the standalone arbitration agreement, he was terminated.  The employee handbook did contain an arbitration clause.  The employee subsequently filed a complaint in state court and Raymours filed a motion to dismiss the state court complaint and compel arbitration.

In denying Raymour’s motion to compel arbitration, the Appellate Division noted that the employer could not have it both ways.  The employer could not argue that the handbook was not a contract between the parties, but at the same time argue that the handbook did contain a full waiver of an employee’s right to file a lawsuit in state or federal court.  The Appellate Division stated,

In this setting, it is simply inequitable for an employer to assert that, during its dealings with its employee, its written rules and regulations were not contractual and then argue, through reference to the same materials, that the employee contracted away a particular right.

Moreover, the court noted:

In any event, our Supreme Court has made clear that an employee in this circumstance must “clearly and unambiguously” agree to a waiver of the right to sue.  By inserting such a waiver provision in a company handbook, which, at the time, the employer insisted was not “promissory or contractual,” an employer cannot expect — and a court, in good conscience, will not conclude — that the employee clearly and unambiguously agreed to waive the valued right to sue. And, by the same token, in obtaining the employee’s signature on a rider, which stated only that the employee “received” and “underst[ood]” the contents of the company handbook or rules and regulations, the employer cannot fairly contend the employee “agreed” to a waiver of the right to sue that might be found within those materials.

So what does this court decision mean for you if your handbook contains an arbitration clause?  This decision means that if you want to be able to enforce an arbitration clause, then you as the employer must obtain an employee’s signature on a standalone arbitration agreement.  Given this change in the law governing employee handbooks, it is an opportune time to undergo a thorough review of your employee handbook to bring your handbook into compliance with the law in New Jersey.

Discipline and the FMLA

“Can I discipline an employee who takes FMLA?”

By now, most employers with 50 or more employees are well aware that the Federal Family Medical Leave Act requires them to provide up to 12 weeks of unpaid, job-protected leave to eligible employees who have a serious health condition that renders the employee unable to perform his/her job. But what if the employee has a “bad” disciplinary record and then goes out on FMLA leave? Can you terminate the employee for breaking workplace rules before he went out on FMLA leave?  And, if you choose to do so, what’s your legal exposure?    

These issues were recently considered by the Third Circuit Court of Appeals In Richard Beese v. Meridian Health Systems, 2015 U.S. App. Lexis 10108 (11/2/15), where a former employee claimed he was wrongfully retaliated against (under the FMLA and New Jersey’s Law Against Discrimination) because he took protected leave under the FMLA.  In Beese, the employee was subject to the employer’s discipline policy which identified numerous workplace violations and which also described the progressive nature of employee discipline (e.g., warned that after a certain number of infractions in a given time period, termination was possible).

After having received a “Final Warning” under the employer’s discipline policy, the employee engaged in yet another violation of workplace rules and, before the employer could make a final determination as to whether the violation actually occurred, the employee went out on an FMLA-protected leave of absence. The employer concluded he did in fact engage in a violation and, when he returned from FMLA leave, he was issued his last and final disciplinary notice (for conduct that occurred before he went out on FMLA) and was terminated.

The employee claimed that both the Final Warning and the termination were in retaliation for his taking protected leave. As to the Final Warning, the Court rejected the employee’s claim of retaliation, finding that even though the pattern of excessive absenteeism that lead to the Final Warning were protected under the FMLA and NJLAD, that the employee would have been disciplined for his failure to follow established call-out procedures which had nothing to do with his FMLA protected absences.

The employee also claimed that he was fired not because he “broke the rules” after the Final Warning, but rather, because he went out on FMLA leave. The employee’s problem, however, was that he failed to show any connection between his taking the protected FMLA leave and the decision to terminate his employment or any motive that the employer may have had to retaliate against him because he took FMLA leave. As a result, the Court rejected that claim as well and affirmed the dismissal of the employee’s claims.

The lesson here: If you have a set of neutral workplace rules that do not violate FMLA or other protections, and you enforce those rules in a way that does not violate the FMLA or other rules and regulations, you can discipline employees even if they exercise their rights to take protected leave. The “take-away”: Be extremely careful in how you approach discipline of employees who are on FMLA leave or have taken it in the past. To be safe, give serious consideration to consulting your labor and employment attorneys about these serious issues.

NLRB Strikes Again!

As many of you know, the NLRB has been incredibly active over the past several years in getting its message across to employees that the NLRA protects their concerted workplace activities even where the employee does not work in an already unionized work setting.  Such efforts will likely continue, especially after a prominent federal circuit court of appeals in late November, 2015 upheld the NLRB’s finding that certain employer workplace policies by their very existence had a “chilling effect” on an employee’s ability to participate in protected concerted action under Section 8(a)(1) of the NLRA.

In Hyundai Am.  v. NLRB, 204 LRRM 3557 (D.C. Cir. 2015),  a former Hyundai  employee claimed that she was wrongfully terminated because of her participation in certain protected concerted activities in violation of federal labor law requirements.  When the NLRB decided to bring suit against  Hyundai, it also claimed that the employer maintained certain work rules (some as part of the company’s employee handbook) that “on their face violated Section 8 (a)(1).”  When the case was ultimately administratively tried, the wrongful termination claim was rejected, with the ALJ finding that the employee would have been fired even had she not violated any of the challenged rules.  Nonetheless, the ALJ and subsequently the NLRB itself upheld the conclusion that the challenged rules were indeed violative of the NLRA because their mere existence had a chilling effect on an employee’s ability to engage in protected concerted actions under Section 7 of the Act.

Hyundai subsequently appealed this ruling to the Federal Circuit Court of Appeals for the D.C. Circuit.  The court ultimately affirmed the finding that three of the four challenged rules violated the NLRB because of the chilling effect that the rules had on the possibility of employee collective action.  The rules that were struck down as violating the NLRA included : (1) an oral blanket confidentiality rule prohibiting employees from revealing information about matters under investigation; (2) a handbook rule placing limitations on the use of the Company’s electronic communications systems that concluded with the requirement that “employees should only disclose information or messages from theses [sic] systems to authorized persons”; and (3) a handbook rule allowing disciplinary action, including termination, “[f]or performing activities other than Company work during Company hours.”   A fourth rule that was challenged, an “open door” type complaint procedure contained in the Company handbook, was found to not be a violation of the Act.

With decisions of this kind upholding the NLRB’s right to continue its scrutiny of employer policies as violations of the concerted activity protections of the NLRA, it is important that employer’s rigorously review their own polices to insure that such polices would pass muster if ever challenged by the NLRB.  With help from an experienced labor and employment lawyer, employers can maneuver through the legal landmines being set by the NLRB as it continues in its efforts aimed at facilitating greater employee participation in workplace concerted activities.

Am I Responsible If My Temporary Employee Alleges Discrimination?

Most employers are aware that they can be held liable for violating Title VII if an employee claims that he/she was discriminated against in the workplace. What happens if a temporary employee (someone assigned to a company by a staffing agency) alleges that he/she was discriminated against while assigned to the employer’s place of business?  Is the assigned company liable? A recent Third Circuit case analyzed this issue in Faush v. Tuesday Morning, Inc., No. 14-1452, 2015 U.S. App. LEXIS 19977 (3d Cir. Nov. 18, 2015) and found that in certain circumstances, “temporary employees” can be considered “employees” for purposes of Title VII and the Pennsylvania Human Relations Act, leading to liability for the assigned company.

The Facts:

Mathew Faush is an African American employee of Labor Ready, a staffing company that provides temporary employees to businesses. Labor Ready entered into an agreement with Tuesday Morning, Inc. (“Tuesday Morning”) to supply temporary employees and Faush was assigned to one of Tuesday Morning’s stores for a period of 10 days (8 hours a day). Faush never applied for employment with Tuesday Morning and Faush did not have a contract of employment with Tuesday Morning.

Each day that Faush was assigned to Tuesday Morning, a supervisor at Tuesday Morning would sign off on the number of hours that Faush had worked. Labor Ready then billed Tuesday Morning an hourly rate for Faush’s work. The agreement between Labor Ready and Tuesday Morning stated that once a temporary employee was at the store, Tuesday Morning “was responsible for supervising and directing his or her activities.” Tuesday morning was expected to determine the temporary employee’s skills and only assign the employee duties consistent with his/her skills and abilities. Tuesday Morning’s supervisor had supervisory control over the temporary employees, trained them and assigned them to each task. The agreement between Labor Ready and Tuesday Morning also required both companies to comply with all employment laws and both companies pledged to provide a workplace free of discrimination and unfair labor practices.

During the course of his assignment with Tuesday Morning, Faush alleged that his supervisor at Tuesday Morning accused him and another African American employee of stealing.  Moreover, Faush alleged that two days later, the store owner’s mother told Faush and two other African American employees to work in the back of the store with the garbage.  Faush asserted that when he and the African American employees went to speak with the supervisor, a white employee blocked their way and used a racial slur towards them. Faush also alleged that Tuesday Morning’s supervisor ignored his complaints of discrimination.

The Lawsuit:

Faush filed suit against Tuesday Morning alleging violations of Title VII and the Pennsylvania Human Relations Act. The Court initially dismissed Faush’s case, holding that Faush was not Tuesday Morning’s employee.  Faush appealed and the Third Circuit reversed the lower court, finding that Faush was Tuesday Morning’s employee for purposes of Title VII and the Pennsylvania Human Relations Act.

When analyzing whether or not Faush was Tuesday Morning’s employee, the Court focused on Tuesday Morning’s right to control the manner and means by which Faush’s work was accomplished. The Court held that a rational juror could find that Faush and Tuesday Morning had a common law employment relationship. Although Labor Ready set Faush’s pay rate, Tuesday morning paid for each hour that Faush worked (not per project) and had ultimate control as to whether or not Faush was permitted to work at its store.  Tuesday Morning’s control over Faush’s daily activities also favored the fact that he was an employee.  Finally, Tuesday Morning bore many legal responsibilities of a traditional employer, as set forth in its agreement with Labor Ready, including the duty to comply with Title VII and the Pennsylvania Human Relations Act.

What Does This Mean to Me?

Employers must make sure that their workplace is free of discrimination/unlawful practices for all employees, permanent AND temporary.  Although this case is fact specific, it is important to be aware that a company is not shielded from liability for discrimination claims brought by a “temporary employee” just because that employee was not hired directly by the company.

My Employee Complained… Now What?

After an employee files a complaint within the workplace, many employers are concerned that they are no longer allowed to take any disciplinary action against that employee in the future.  This is due to the employer’s fear that the employee will file a retaliation claim.  This fear is not unfounded, but there are ways to avoid, or at least defend against, such retaliation claims. A recent case from the Third Circuit, Fischer v. G4S Secure Solutions USA, Inc., 614 Fed. Appx. (3d Cir. 2015), demonstrates the importance of responding to employee complaints in an appropriate fashion in order to avoid liability in a retaliation suit.

Facts:

Bryan Fischer (“Fischer”) was hired by G4S Secure Solutions USA, Inc. (“G4S”) in 2007 as a security guard.  Fischer was assigned to a nuclear power facility run by PSEG Nuclear, LLC (“PSEG”)1.  Between April 2008 and February 2010, Fischer reported safety concerns in the workplace to management. Many of Fischer’s safety concerns involved complaints about the behavior of Fischer’s co-workers, which caused Fischer’s co-workers to become hostile towards him.  Co-workers showed him text messages that read, “Fischer is going to get his” and “Fischer’s no good, why [do] you talk to him?”  Fischer also noticed that he was being ignored by certain co-workers. As a result, Fischer made a report to G4S’ Employee Concerns Program about poor treatment by his co-workers and G4S hired an attorney to conduct an investigation. During the course of the investigation, Fischer was placed on administrative leave with pay and the investigator/attorney met with Fischer several times to gather information. As the investigation came to a close in May 2010, the investigator advised that he believed that the “work environment was being corrected.”

In September 2010, Fischer had multiple telephone conferences and in person meetings with management about whether, and how, he could return to work. During these conversations, management reassured Fischer that they were taking his concerns seriously and that they would take disciplinary action against anyone who acted inappropriately towards him. Management advised Fischer that they were glad that he reported the conduct and that he would have a “direct line” to management if anyone gave him a “hard time” when he returned to work.

Nevertheless, because Fischer advised that he still felt unsafe returning to work, management offered to take a number of steps, including providing an escort, in order to make Fischer feel safe.  Management even gave Fischer the option of transferring to a different worksite2. Despite these responses, Fischer refused to return to work, rejected the transfer, and demanded a severance package of $800,000. G4S rejected the demand and gave Fischer a deadline to either return to work or accept the transfer.  Fischer refused to return to work, rejected the transfer, and as a result, was terminated for failing to report to work.

The Court Case:

Fischer filed suit in Federal Court against G4S claiming that G4s violated the retaliation provisions of the New Jersey Conscientious Employee Protection Act (“CEPA”). Fischer alleged that he was terminated for speaking out, or threatening to speak out, about safety concerns and unfair practices in the workplace.  After initial legal motions and an appeal to the Third Circuit Court of Appeals, Fischer’s claims were rejected because, among other reasons, there was no causal connection between Fischer’s complaints and Fischer’s termination. The evidence showed that G4S was responsive to Fischer’s complaints and that he was commended for bringing safety concerns to management’s attention.  Furthermore, G4S worked with Fischer and offered him options to allow him to safely return to the workplace.  In summary, Since G4S responded to Fischer’s complaints appropriately and went above and beyond in providing support for Fischer, the Court found that no rational juror could conclude that Fischer was terminated in retaliation for making safety complaints.

What does this case mean to employers and HR professionals?

Employers and HR professionals should make sure, after consulting with their labor and employment counsel, to respond promptly when an employee complains about wrongdoing in the workplace.  The more evidence an employer can show that appropriate action (e.g., investigation and appropriate solutions and/or discipline of wrongdoers) has taken place, the less likely it is that an employee may prevail regarding a retaliation claim if he/she is disciplined for conduct unrelated to the initial complaints.

  1. PSEG contracts with G4S for security service.
  2. Management discussed firing the offending employees, but Fisher thought that doing so would only lead to additional hostility towards him in the workplace.

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