Employee Fired for Facebook Postings Latest Example for Why Companies Need a Social Media Policy and Plan

Employee social media issues recently made headlines in the most deplorable way when an employee was fired on September 29, 2015, after he posted a picture of himself online with a colleague’s 3-year-old black son. The picture taken by Gerod Roth, the former employee, resulted (for reasons unknown) numerous bigoted and racists comments from the former employee’s friends.

The picture taken by Roth was facially unassuming and he claims the entire post was taken out of context. But he did little to redeem his cause in light of his reply to a Facebook friend asking “Dude where the hell did you get a black kid??” Roth responded by saying, “He was feral.” Many of the other comments are just despicable and rightfully call into question the character of those responsible.

Polaris Marketing Group President, Michael Da Graca Pinto, responded to the Facebook posting and comments as “disgusting,” and released the statement provided in the inset. Polaris Facebook FiringHowever, Pinto later insisted Roth’s 9/29 termination, two weeks after the post, was the result of unrelated issues at work. In any event, Mr. Pinto made the right business decision to issue a strong statement condemning the Facebook posting and making it clear his company in no way approves of such trash.

Social Media and Employees

Social media creates any number of headaches for employers and their human resource professionals. For starters, employers barely have the time to continuously monitor normal business operations for employee misconduct. So to add policing off-duty or social media employee conduct is a burden that most employers are not excited to undertake, nor want to. But as the Polaris Marketing company example illustrates, a company’s success and legitimate business interests are often directly associated with its employees – for better or worse.

Also, when it comes to discrimination, harassment, retaliation, etc., such misconduct increasingly takes place, in whole or in part, through social media. And such misconduct could be imputed to the employer. Accordingly, proactive organizations focused on preventing wrongful employee misconduct and/or limit their liability for it will want to have a plan in place for investigating and redressing issues of unlawful harassment,  discrimination or other workplace-related misconduct. Also, such issues – aside from potentially being unlawful – can impair employee productivity.

But employers cannot simply implement broad employee restrictions when it comes to social media. Employers also cannot just discipline employees who may post or say things on the Internet that are seemingly adverse to the employer’s legitimate business interests, but may be considered protected “concerted activity” under applicable labor laws. This is especially important in light of the National Labor Relations Board’s active interests in applying Section 7 of the National Labor Relations Act to Facebook and social media postings involving union and non-union employees.

What Should Your Company Social Media Policy Say?

With this in mind, it is easy for employers to feel as if they are “damned if they do, damned if they don’t.” But that shouldn’t be the takeaway. Instead, employee social media issues – like most business operations – take careful planning to identify the risks, understand what can be done to eliminate those risks or, minimally, reduce those risks, and then implement plan. And that plan begins with developing written policies for employee social media use.

In this regard, I caution employers against drafting a social media policy that covers too much but says too little with respect to what is expected of an employee when it comes to social media. In other words, it is impossible to meaningfully identify every example of what an employer considers appropriate or inappropriate when it comes to social media postings. Also, attorney Dennis Merley writes at the MN Employment Law Report about the importance of being able to document that employees have read the policy. See An Unread Policy is No Policy At All.

Drafting a social media policy should begin with assessing the business needs and concerns in order to determine what, if any, social media limitations make sense for your business. But a few areas that almost every policy should cover to some extent include:

  • The treatment of confidentiality and trade secrets on social media. Confidentiality may extend to company resources, as well as customers, vendors, and patients.
  • Clarifying ownership of social media accounts.
  • Most importantly, careful attention needs to be given to drafting your company’s social media policy to avoid violating employees’ NLRA Section 7 rights to engage in protected activity. See Employer’s Social Media Policy Found Not To Violate Employees’ Rights.

For more information about employee/employer social media issues, including drafting social media policies for your business, contact employment attorney Jason Shinn. Mr. Shinn regularly addresses social media HR issues. He has also spoken to various HR organizations on the subject of employment law best practices for dealing with social media in the workplace.

Whistleblower Protection – It Takes More than Just Blowing a Whistle

WhistleblowerA decision released on 10/1/2015 from the Department of Labor’s administrative review board (the “Board”) highlighted employment law issues arising at the intersection of whistleblowing, retaliation, and reasonable accommodation involving telecommunication. (Stewart v. Lockheed Martin Aeronautics Co., released 10/1/15). In the decision, the Board affirmed an administrative law judge’s ruling against Lockheed’s former employee.

The ruling held the former employee failed to establish claims that the company violated the Sarbanes-Oxley Act’s (SOX) whistle-blower protections by rescinding her approval to telecommute, harassing her, and constructively discharging her after she raised concerns about workplace audit.

Employee Whistleblower

As to the facts leading up to the claim, Stewart worked for Lockheed for 20 years, serving as a certified public accountant and then lead of its subcontracts audits group. In 2009, Lockheed began offering telecommuting for employees. Stewart had a neurological disorder and she began teleworking several days a week.

In late 2011, Stewart was assigned to audit a joint venture between Lockheed and Tata Advanced Systems. She raised a number of concerns during the audit, including the management team’s purported lack of subcontract audit experience, a lack of data to conduct the audit and potential conflict of interest issues.

Thereafter, Stewart claimed that Lockheed management rescinded her ability to telecommute and harassed her. She took medical leave in April 2012 and didn’t return to work, eventually resigning in December. Stewart brought a SOX Act whistle-blower claim against Lockheed, but a Labor Department ALJ ruled in the company’s favor in January 2014.

No Causation Between Adverse Employment Decisions and Whistleblowing

The Board found substantial evidence that Stewart failed to show that her protected activity contributed to any of the adverse employment actions she alleged. Specifically, it found that Lockheed had:

  • Suspended telecommuting before Stewart submitted her audit complaints;
  • Any purported harassment resulted from the telecommuting denial; and
  • Stewart had voluntarily decided to retire at the end of a medical leave of absence.

For these reasons, the Board agreed that there was no causation with respect to the claimed protected activity and the adverse employment decision.


Would-be whistleblowers need to evaluate numerous factors before blowing the whistle. In sum, the complex legal and ethical landscape will determine whether to blow the whistle and under what circumstances.

For companies, it is important to realize that employees may be less likely to publicly blow the whistle if they believe that their companies have effective internal mechanisms for raising concerns about perceived misconduct. For this reason, an important objective of companies in handling internal whistleblower complaints should be to do so in a manner that convinces employees that the companies fairly and effectively address employees’ concerns.

This also has the added risk-management benefit to the extent a court or jury believes the employee did not exhaust existing internal channels for complaints.

For more information about whistleblowing laws and complying with employment legal requirements prohibiting the retaliation against whistleblowers, contact employment attorney Jason Shinn. Mr. Shinn has assisted employers and employees since 2001 in the area of federal and Michigan employment law issues.

Does Your Company’s Employment Agreements Limit Employment Claims?

Contract-Documents.jpgEmployers often overlook the opportunity to limit liability against their business when it comes to employment agreements. And one of the most common ways in which a business can limit its liability is through a contractual limitations period. A recent Michigan Court of Appeals highlights this point.

Specifically, a shortened limitation period in an employer’s policy handbook barred a plaintiff’s lawsuit for wrongful discharge in retaliation for filing a workers’ compensation claim. (Hier v. Douglas J. Management LLC (9/15/2015). In this case, Plaintiff was injured at work in February 2011 and received worker’s compensation benefits. She was later terminated.

Plaintiff claimed she was wrongfully terminated because she asserted her rights under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq. In response, the employer relied upon its employee manual, which provided that an employee must commence “any claim, complaint, action or suit relating to their employment with the Company” within 182 days of the event “giving rise to the claim, complaint, action, or suit.”

The Court took a very “employer friendly” view for determining when the clock began to run on Plaintiff’s claim. Specifically, the Court concluded the “event” giving rise to Plaintiff’s claim, i.e., the day on which Plaintiff’s claim for retaliatory discharge accrued, occurred on July 26, 2011, when she was allegedly terminated. Plaintiff filed her lawsuit on June 26, 2013, which was more than 182 days after July 26, 2011. Further, the Court rejected Plaintiff’s argument that she complied with the contractual limitations period based on the worker’s compensation application that was filed on July 18, 2011 (eight days before the alleged termination of her employment), which was within 182 days of her injury.

The Take-Away

All employment related claims are subject to limitations period established by statute, i.e., the time period in which an employee must take legal action, which is often measured from the time the injury or events giving rise to the claim occurred. In Michigan, this may be as short as 90 days in the case of a claim under the Whistleblower Protection Act Claim or Worker’s Disability Compensation Act. In contrast, employees have a three year statutory limitation period for bringing actions alleging employment discrimination in violation of the Michigan Civil Rights Act.

But, as the above case illustrates, employment agreements can call for a shorter limitations period for many – but not all – employment-related claims.  It is critical to discuss with your employment attorney what claims may be shortened and what shortened limitation period will likely be acceptable to a court.

Also, as an aside, the case discussed above referenced the employer’s limitation period as being in an employee handbook. As a general strategy, I strongly recommend companies avoid using an employee manual or employee handbook for the source of contractual limitations or other provisions that the employer may want to enforce.

The reason for this strategy is that often such manuals contain language expressly noting it is not an enforceable contract. And under Michigan law, provisions in a handbook will not create enforceable rights if the manual provides it is not intended to create an employment contract. In fact, earlier this year, we used this argument to successfully defeat a motion to dismiss brought by the defendant employer against its former manager in a pregnancy discrimination lawsuit.

In that particular case, the employer’s manual specifically provided, “I understand that the associate handbook is not an employment contract but does provide an overview of [Company’s] employment guidelines and procedures.” Without that argument, our client’s pregnancy discrimination claim was able to proceed. On the other hand, a well-drafted limitation period could have allowed the employer to avoid costly litigation.

This also brings up another important point for employees; Waiting to contact an attorney may jeopardize your legal claims if there is a shortened statute of limitations period buried in your employment agreement or employee manual.

For more information about improving your company’s employment agreements and HR operations, contact employment attorney Jason Shinn. Since 2001, he has worked with employers to comply with federal and Michigan employment laws, as well as implementing HR best practices for avoiding or limiting HR-related risks.

Michigan Court of Appeals Rejects “Cat’s Paw” Theory in Employment Discrimination

Office MeetingRecently an employer, Pepsico Pepsi Beverages Company, won a summary disposition in an age discrimination claim filed under Michigan law. (Damghani v Pepsico, 9/10/2015) But the real significance of this case has to do with the court rejecting the application of a common employment discrimination theory often referred to as the “cat’s paw liability.”

Background of the Employment Discrimination Lawsuit

As to the facts in the Pepsico case, the plaintiff claimed her supervisor, Jerry Caswell, was sarcastic and critical of her but “kind and happy” with other younger employees. Under Caswell, she was put on a performance improvement plan (PIP). And while on this PIP, another manager (Amy Heiney) removed plaintiff as a head cashier. Plaintiff claimed this same supervisor asked plaintiff when she would retire. Caswell – not the manager who made the allegedly discriminatory statement – eventually terminated plaintiff’s employment because she was unable to satisfactorily complete her PIP.

Plaintiff later sued her employer and her supervisor, Caswell, for age discrimination and retaliation under the Civil Rights Act (ELCRA), MCL 37.2201 et seq.

Cat’s Paw Theory and Employment Discrimination

Plaintiff argued that Heiney’s statement was direct evidence of discrimination with regard to her termination under a theory of “cat’s paw liability.” Under this theory, plaintiff argued that Heiney’s comment was direct evidence of discrimination with regard to plaintiff’s subsequent termination. The underlying premise of the “cat’s paw theory” is that the discriminatory animus of one individual (Heiney) who is not the ultimate decision-maker can trigger liability when the individual has singular or substantial influence over the actual decision-maker (Caswell) and uses that influence to cause the adverse employment action.

The Michigan Court of Appeals, however rejected both the argument and its application under the circumstances presented because no evidence was presented to support that Heiney’s discriminatory animus as reflected by her comment influenced or related to Caswell’s decision to terminate plaintiff.

The Take Away:

Senior managers and human resources personnel often rely on first line managers. And with ever increasing workloads, managers often lack the time or resources to conduct independent reviews of personnel decisions recommended or initiated by such managers.

While this court opinion is favorable for employers, it is unpublished, which means it has limited authority. With this in mind and as a best practice, companies need to guard against simply having managers “rubber-stamping” such recommendations. Instead, it is important role that upper management and human resources making employment decisions take care to conduct an independent inquiry of the alleged facts.

This means if witnesses are involved, they should be interviewed. And if documents are relied on, they must be reviewed. And in almost every instance it will be important to talk to the employee and get his or her side of the story before an adverse employment decision is made. While such efforts will no doubt take time, it may result in avoiding litigation or prevailing if a lawsuit were to be filed.

For more information about employment discrimination, contact attorney Jason Shinn. Since 2001, he has counseled many employers through investigations and termination decisions.

Reversal of Jury Verdict in Religious Discrimination Lawsuit – Divine Intervention or Judicial Mistake?

Rosary BeadsA nursing home activities aide who was fired for refusing to pray the Rosary with a resident failed to prove job bias because she didn’t present sufficient evidence that her employer, Woodland Village Nursing Center Inc., knew before it decided to discharge her that plaintiff’s refusal to pray the rosary was based on her religious beliefs (Nobach v Woodland (2015)). As a result, a $69,584 jury verdict in favor of the plaintiff under Title VII of the 1964 Civil Rights Act was reversed by the Fifth Circuit Court of Appeals.

Employee Refuses to Read the Rosary Because it Conflicts with Her Religion

The plaintiff former employee had worked for Woodland just over a year before being told that she was fired for refusing to read the Rosary to a resident. This incident arose after a resident complained to Woodland management when no one prayed the rosary with her that day. Following an investigation, management decided to fire plaintiff.

Plaintiff filed her religious discrimination claim under Title VII. This federal employment statute makes it unlawful, among other areas, for an employer to discharge an individual “because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). In obtaining the jury verdict, the plaintiff pointed to the following to support her claim:

  • When asked to read the Rosary, plaintiff told a co-worker, who didn’t have any supervisory authority over plaintiff, “I’m not Catholic, and it’s against my religion.”
  • She was fired for not praying the Rosary with a resident;
  • Her supervisor said in regard to the Rosary incident, “I don’t care if it’s your fifth write-up or not. I would have fired you for this instance alone. I don’t care if it is against your religion or not. If you don’t do it, it’s insubordination.”

Procedural Background

On Appeal, the Court held the jury was mistaken in awarding the verdict as there was no evidence that Woodland was motivated by plaintiff’s religious beliefs before it discharged her.

The plaintiff then petitioned and was granted a rare ruling from the Supreme Court, which vacated and remanded the case for reconsideration in light of the U.S. Supreme Court’s ruling in EEOC v. Abercrombie & Fitch Stores Inc., (2015). In that case, the Supreme Court Justices held that actual knowledge by an employer of a conflict between a worker’s religious practice and job requirements isn’t required to prove a failure to accommodate under Title VII’s religious discrimination provision.

But in applying the Abercrombie decision, the Court of Appeals still reached the same result favoring the employer as its earlier decision. In doing so, it reasoned that under the Abercrombie decision:

When evaluating causation in a Title VII case, the question is not what the employer knew about the employee’s religious beliefs. Nor is the question whether the employer knew that there would be a conflict between the employee’s religious belief and some job duty. Instead, the critical question is what motivated the employer’s employment decision … We simply cannot find evidence that, before her discharge, [Plaimtiff] ever advised anyone involved in her discharge that praying the Rosary was against her religion.

(internal citations omitted).

Applying this spin, the Court of Appeals, found that unlike the Muslim employee in Abercrombie who was denied an offer after wearing a religious head scarf to her job interview, the plaintiff aid worker couldn’t show any Woodland decision maker came to know of or suspect her religious objection to praying the rosary before she was told she was fired.

The Take-Away

This decision did not sit well with me for a number of reasons. First, this was a jury trial; Whether you agree or disagree with a jury verdict, its determination must generally be given great deference, especially when it comes to evaluating evidence and witness credibility. But the Court of Appeals, concluded that “no reasonable jury” could have reached this decision and, therefore, it set aside that decision.

Second the employer in this case all but admitted that plaintiff’s failure to perform the Rosary was the reason – if not a factor – that precipitated her discharge. Returning to the Abercrombie case, the Justices held that actual knowledge was not required to prove a violation under Title VII’s religious discrimination noting:

… an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need …Thus, rather than imposing a knowledge standard [Title VII] prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement.

Yet, the Court of Appeal concluded that there was “no evidence” that the plaintiff advised anyone involved in her discharge that praying the Rosary was against her religion. In reaching this decision, however, the Court completely ignores the Abercrombie case and the fact that the Rosary is a quintessential and inherent religious observance of the Catholic Church.

Third and building on the preceding point, the Court of Appeals noted that the evidence showed the employer conducted an “investigation” into the incident prior to terminating plaintiff. The scope of that investigation, however, appears to be extremely superficial; There is no mention that plaintiff or her co-worker were interviewed. In fact, it is not even clear plaintiff knew she was being investigated.  With this in mind, the Court of Appeals seems to give the green light to employers to conduct a superficial and limited investigation designed to avoid learning fundamental facts in order to insulate an adverse employment decision from becoming unlawful discrimination. Conversely, the Court sends the message that employees who refuse to practice/observe a core religious function at work to expressly make a declaration to management that the refusal is based on one’s religious beliefs in order to be protected under Title VII.

For more information about complying with Title VII’s anti-religious discrimination provisions, as well as accommodating an employee’s religious beliefs, contact Michigan employment attorney, Jason Shinn.

Is a Single Incident Enough for a Sexual Harassment Lawsuit?

One_CountdownWhile one may the loneliest number, it is also a number that can be quite costly for employers when it comes to defending a sexual harassment lawsuit under a recent ruling from the Sixth Circuit Court of Appeals.

Specifically, on July 24, 2015, a trial court’s decision was reversed, which allowed a female dining services employee at Oberlin College in Ohio to proceed to trial with her state law sexual harassment claim. This claim arose out of a single incident – albeit an offensive incident – in which a male co-worker allegedly placed his pelvic area against her backside (Ault v. Oberlin College 7/24/15).

In reversing the trial court, the Sixth Circuit found that a reasonable jury could conclude that the alleged physical invasion of the plaintiff’s personal space was sufficiently severe by itself to create a sexually hostile work environment under Ohio law.

Also, the appeals court concluded that the jury will also be required to determine whether Oberlin exercised reasonable care to prevent the alleged harassment. In this regard, plaintiff had complained about the alleged harasser in 2011, but the college didn’t attempt to remove him from campus until five months later, when it heard from plaintiff’s lawyer, the court said. Further, the jury will also be required to determine whether the plaintiff unreasonably failed to take advantage of the college’s anti-harassment procedures.

One Incident Enough for Jury Trial to Determine Harassment

For Michigan employers, it is important to note that this decision arose under Ohio law. But it is also important to realize that the Court noted Ohio law is similar to the federal anti-discrimination law, Title VII of the 1964 Civil Rights Act. And under that law – which applies to Michigan employers – an employee can use a single incident to prove sufficiently severe or pervasive harassment in order to maintain a hostile work environment claim.

In other words, one “extremely serious” but isolated incident may be enough to get a sexual harassment claim past a motion for summary judgment and in front of a jury. For this reason, it is critical for an employer to meaningfully address every single incident of alleged harassment and pursuant to your company’s anti-harassment policies and procedures. Such policies should make it clear:

  • The company is committed to providing a work environment that does not tolerate harassment;
  • Instances of harassment will be promptly investigated and the company will address all reported allegations of harassment;
  • The company will take appropriate disciplinary action; and
  • The Company will not permit retaliation against an employee for filing a complaint of harassment or cooperating in a harassment investigation.

Also, it is important to remind employees, especially in your company’s HR policies and manuals, that they should not assume the company and its managers are aware of harassment issues. Instead, it is the responsibility of each individual to bring an issue or concern about harassment to the appropriate person so that it can be properly investigated and resolved.

For more information about responding to and investigating workplace allegations of sexual harassment, contact Michigan employment attorney Jason Shinn.

Making a Federal Case out of Recording Conversations Involving Employment Discrimination

Voice RecorderHere is something you don’t see happen everyday – an instance of “butt dialing” becoming a federal case.

Specifically, an inadvertently dialed cell phone call purportedly involving discussions about unlawful employment discrimination resulted in a federal lawsuit for intentionally intercepting private conversations in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968 (18 USC 2510 et seq.).

The fact pattern for this case (Huff v Spaw, 7/21/2015) is somewhat convoluted, but it provides an important reminder to employers and employees about the importance of understanding when workplace conversations, including between managers and employees, may lawfully be recorded.

How an inadvertent cell phone call become an unlawful interception

James Huff accidentally dialed his coworker, Carol Spaw, while he was talking face-to-face with Huff’s colleague, Larry Savage. Spaw initially said “hello” a number of times, however, no one answered. Rather than hanging up, she continued to listen – for 91 minutes – to the conversations between Huff and Savage. Spaw believed the men were discussing unlawful discrimination involving Spaw’s CEO (Candace McGraw). At some point during the 91 minute call, James Huff’s wife, Bertha Huff, was also recorded after she joined a conversation with her husband. Spaw transcribed what she heard and used an iPhone to record a portion of the conversation between James and Bertha Huff (the Huffs). The Huffs brought suit against Spaw for intentionally intercepting their private conversations, in violation of the above federal statute (18 USC 2510 et seq.).

Procedurally, the district court granted summary judgment in favor of Spaw on the ground that, because James Huff placed the pocket-dialed call, both of the Huffs lacked a reasonable expectation that their conversations would not be intercepted, which is a prerequisite for protection under Title III. The Court of Appeals partially reversed the District Court’s decision in that it left in place the dismissal in favor of Spaw against the James Huff, but reversed as to his wife, Bertha Huff. Savage was not a party to the suit.

The Take-away for Employers and Employees

Spaw believed that she was recording conversation involving unlawful discrimination in the workplace – a frequent belief that often motivates employees to begin recording conversations with managers. And taking that belief at face value, recording a conversation may seem to be a noble undertaking. However, that does not mean it is a lawful undertaking.

For this reason, both employers and employees need to understand that unlawfully recording conversations is not a situation where you can get away with asking for forgiveness later rather than first getting permission.

Consider that the federal statute involved in the case provides for civil damages, which includes actual damages, any profits made by the violator or statutory damages, and the recovery of attorney fees, in addition to possible criminal liability. Similarly, a violation of Michigan’s eavesdropping statute (MCL 750.539a et seq.) may result in civil liability (including punitive damages), or criminal penalties.

And while there are exceptions and nuances to the applicability of both the federal and Michigan’s eavesdropping statute, none depend upon having a noble cause, those exceptions are often narrowly construed, and the nuances need to be thoroughly understood to avoid inadvertently violating the applicable statutes.

Contact Michigan employment attorney Jason Shinn for more information about investigating workplace misconduct or instances of possible discrimination and harassment.

Job Descriptions are Critical for Successfully Defending Against Workplace Disability & Accommodation Claims

Employee HandbookOnly the most die-hard HR professional considers job descriptions as exciting and management outside of HR often ignore them altogether. But job descriptions are a critical first step in guarding against employer liability when it comes to federal and Michigan disability-related employment discrimination claims.

Take for example a recent Michigan employment decision arising under the Michigan’s Persons with Disabilities Civil Rights Act (Michigan’s Disabilities Civil Rights Act) (Williams v Michigan Department of Corrections 7/21/2015). In this case, Plaintiff began working for the Michigan Department of Corrections (MDOC) in September 2003, as a corrections officer. However, during her employment, she had a kidney transplant and other health issues that forced her to stop working for defendant in 2004. She returned to the MDOC in 2005 also as a corrections officer. But her medical problems continued and plaintiff took additional medical leave.

She again returned in 2008 with no work restrictions. Upon returning, she also applied to and was transferred to a different prison facility. This position, however, was a very physically demanding assignment with almost no light-duty activities for guards; The guards at this facility were especially active and involved in the boot-camp style physical activities. After this transfer, Plaintiff later underwent additional medical treatment that required her to be off approximately eight weeks. Upon returning, Plaintiff requested to be placed on light duty assignments or to be transferred again and supported this request with a doctor’s note directing her to abstain from “strenuous exercise & stressful situations.”

However, Plaintiff had exhausted her entitlement for leave under the family and medical leave act (FMLA) and she was told there were no light duty assignments available to her. Accordingly, Plaintiff was given a choice of providing a release from her doctor allowing her to return to regular work duties or requesting a waived rights leave of absence. Instead, Plaintiff submitted a second doctor’s note exempting her from “prolonged regular calisthenics.” Defendant responded by terminating her employment in August 2010.

Employee Disabilities, Employment Accommodations, and Job Duties

The Michigan’s Disabilities Civil Rights Act, which is similar to the federal American’s with d Disabilities Act (ADA) provides that an employer shall not “[d]ischarge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a disability or genetic information that is unrelated to the individual’s ability to perform the duties of a particular job or position.” MCL 37.1202(1)(b). The Defendant employer and former employee agreed that plaintiff was disabled for purposes of the statue. They disagreed, however, as to whether Plaintiff’s disability prevented her “from performing the essential functions of her job, and whether plaintiff’s disability was unrelated to her ability to perform her job duties.

This disagreement was essentially the “ball-game” because under Michigan employment law, a plaintiff alleging a violation of the Michigan’s Disabilities Civil Rights Act  must show that she is able, with or without accommodation, to perform those functions; otherwise, the employee cannot proceed on a Michigan’s Disabilities Civil Rights Act  claim.

To answer this question and the reason job descriptions should be priority number one for any employer, the Court turned to the issue of what were the essential functions of the applicable job.

… the customary responsibilities of the employer in defining the scope of job positions are unaffected by the [Michigan’s Disabilities Civil Rights Act] and . . . the judgment of the employer in terms of such scope is entitled to substantial deference by the courts under the [Act] … and [it] is not a statute designed to regulate, or to set governmental standards for, particular employment positions . . . . Nor is it a statute designed to enable judges to second-guess, or to improve upon, the business judgments of employers. Thus, the judgment of the employer regarding the duties of a given job position is entitled to substantial deference.

(internal citations omitted). Upon framing the issue from this perspective, the Court had no difficulty in reversing the trial court’s decision, deciding the case in favor of the employer, and dismissing Plaintiff’s claim. In sum, because the employment position required significant physical activity, including running and training prisoners, the Plaintiff could not perform these job duties. Thus, her condition rendered Plaintiff unqualified to perform this particular job because she could not perform the essential functions of the job.


Employers frequently face concerns when it comes to disciplining employees for poor performance or violating company policies when those employees may have raised issues that are covered by federal or Michigan anti-discrimination laws or disability-related employment laws. Such discipline, including terminations, can turn legitimate disciplinary action into a high-risk endeavor. See a recent post, “Oy Vey! No Religious Discrimination in Jewish Nurse’s Termination” where an employee tried to turn a 3 month old incident into the discrimination lawsuit). But the above case shows why companies and their HR professionals can substantially reduce this risk and even eliminate by giving proper attention to drafting meaningful job descriptions, including the essential functions of that particular job.

For more information about responding to an employee’s request for workplace accommodations, as well as complying with Michigan’s Disabilities Civil Rights Act or the ADA, contact Michigan employment attorney Jason Shinn. Since 2001, he has worked with employers when it comes to complying with employment laws, including those involving workplace accommodations.

Non-Solicitation Restrictions – A Valuable Tool for Protecting Your Company’s Customer Relationships

ToolboxWhen it comes to post employment restrictions, non-compete agreements often get all the attention. In fact, such restrictions are a frequent subject of discussion on our law firm’s blog (Noncompete Restrictions: The First Line of Defense for Protecting the Company from Unfair Competition).

However, as explained below, a carefully drafted non-solicitation provision should be in every employer’s toolbox when it comes to protecting relationships and customers critical for business success.

How Non-Solicitation Restrictions Protect a Business

Take for example a recent case involving the enforcement of a non-solicitation provision in an insurance agent agreement (American Family Mutual Insurance Company v. Graham 7/5/2015). Specifically, the individual defendant, Stephen Graham, sold insurance for American Family Mutual Insurance Company for over 20 years. However, in January 2011, American Family terminated Mr. Graham’s agency agreement.

That agency agreement contained a non-solicitation provision which prohibited Mr. Graham from “directly or indirectly” inducing or attempting to induce any policyholder of American Family to cancel his or her policy with American Family.

Not to be deterred by this restriction, Mr. Graham formed an independent insurance agency and came up with a creative “work around,” to the non-solicitation restrictions, which included the following:

  • In February 2011 he sent approximately a letter to 1,500 of his former American Family customers letting them know he no longer represented American Family Insurance Company.
  • He further noted in this letter that he could not solicit or induce any of his former customers to leave American Family, except he could offer policies for insurance needs that were not covered by an existing American Family policy.
  • Email communications revealed discussions such as, “[w]hen you get some time, just complete and return [the waiver form] and I can run some quotes which I really think will make you smile” or “[j]ust wondering if you got the form you requested. I would love to work some quotes up for you if it works to send [the waiver] back.”
  • He further described how he could offer his former clients “more choices, expanded coverage, an excellent rates” that were “better suited for your needs.”
  • And if a former American Family customer contacted Mr. Graham, the customer was asked to sign a “non-inducement form,” which provided that Mr. Graham had not solicited or induced that customer to “replace, lapse or cancel any American Family Insurance policies.”

American Family, not impressed or amused by Mr. Graham’s creative efforts, sued him in 2012 for violating the agent agreement with the above actions. The company further claimed his actions amounted to inducing or attempting to induce those customers to cancel their American Family insurance policies.

In October 2013, a jury agreed with American Family and found in its favor on all claims. Mr. Graham was ordered to pay $523,153.70 plus interest and he appealed this decision, but he did not fare any better on appeal, which upheld the jury verdict.

The Take-Away for Employers and Employees

Well-drafted non-compete restrictions offer significant protections for employers. But, as we previously discussed here, such restrictions are not always a silver bullet defense to competition by former employees. For this reasons, we recommend that employers consider non-compete restrictions and non-solicitation provisions as a valuable 1-2 punch when it comes to protecting your company’s competitive interests. Having both in place offers employers with alternative theories of recovery – restricting unfair competition by enforcement of the non-compete restriction and protecting customer valuable relationships through non-solicitation provisions.

For employees, Mr. Graham’s efforts bring to mind the saying that ‘pigs get fat, hogs get slaughtered.’ Specifically, Mr. Graham could have simply notified his former customers that he left American Family to start his own agency and left it at that, which could may have avoided the lawsuit and judgment. At least this is the conclusion to be drawn from the Court of Appeals decision. That decision noted that while Mr. Graham’s letter specifically informed customers about his restrictions and intent to “honor that agreement,” it also informed customers that the agreement did not restrict him from offering a “broader range of insurance products” through “other companies that may be better suited for your needs.”

For more information about implementing or improving your company’s protection of competitive advantages and other intellectual property or for a thorough assessment of your obligations under non-compete/non-solicitation restrictions, contact attorney Jason Shinn. Since 2001, he has worked with companies and individuals to address legal issues and enforcement of post-employment obligations under non-compete and non-solicitation agreements.

Oy Vey! No Religious Discrimination in Jewish Nurse’s Termination

CoExistA recent religious discrimination claim dismissed in favor of an employer offers a number important take-aways for both employers and employees. Specifically, on 7/16/2015 the Eighth Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a Jewish nurse who had worked for a Missouri medical center. See Shirrell v. St. Francis Med. Ctr., 7/16/15).

The trial court had granted summary judgment in favor of the employer, which was affirmed on appeal. In reaching this decision, the court concluded the plaintiff, Rebecca Shirrell did not present evidence giving rise to an inference of religious bias, as required by Title VII of the 1964 Civil Rights Act, as well as dismissing her state law employment discrimination claims for similar reasons.

An Overview of a Religious Discrimination Claim

For background purposes, to properly bring a religious discrimination claim under Title VII, a plaintiff must show either direct evidence of discrimination or create an inference of discrimination or retaliation under what is referred to as the McDonnell Douglas burden-shifting framework. If there is no direct evidence and a plaintiff meets her evidentiary standard under the McDonnell Douglas framework, an employer then has the burden of showing a legitimate, non-discriminatory reason for the challenged action. If the defendant offers such a reason, the burden shifts back to the plaintiff to show the defendant’s proffered reason is a pretext.

The court found that the nurse failed to meet her obligations under this framework. Specifically, she failed to show that she was unlawfully fired because of her religion or because she complained about a co-worker who said she would try to “Jew down” the price of a camper she intended to purchase. Additionally, the court held that Shirrell failed to demonstrate a causal connection between her complaint about her co-worker’s single derogatory remark and her termination three months later for accumulating too many disciplinary points within a 12-month period.

In terms of the failings of this religious discrimination claim, the following deficiencies were highlighted by the court:

  • Shirrell didn’t identify any similarly situated, non-Jewish employees who received more favorable treatment.
  • She offered no evidence that the ultimate decision-maker for her termination had any bias toward her because of religion.
  • Shirrell’s history of disciplinary issues plus her reliance on “one overheard, offhand remark” about religion that wasn’t directed at her were fatal to her lawsuit.

Additionally, Ms. Shirrell’s Title VII retaliation claim failed because the evidence showed that the employer terminated Shirrell pursuant to hospital policy for disciplinary reasons, rather than in response to Shirrell’s complaints about the co-worker’s derogatory statement.

Religious Discrimination Take-Aways 

Our law firm recently obtained a summary judgment award in a religious discrimination claim on substantially identical reasons discussed in the Shirrell v. St. Francis Med. Ctr. case. In both cases, a critical factor for the employer’s success was having well-documenting employment policies in place and documenting instances of poor job performance on the part of the employee or violating the employer’s policies. Such evidence will often be an insurmountable obstacle to showing that the employer’s adverse employment action was pretext for religious discrimination.

For employees, it is not enough to simply point to a derogatory statement as evidence of discrimination and expect to be successful in a discrimination claim. This is especially true where the adverse employment action occurs months after the statement was made.

For more information about complying with Title TII’s requirements for providing reasonable religious accommodations or complying with its anti-discriminatory requirements, contact Michigan employment attorney Jason Shinn. Mr. Shinn has been focused on employment law matters since 2001.