With uncanny prescience, Lewis Carroll captured the vibe of the last year when he wrote: "If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what wouldn't be, it would. You see?"
To some, the entire year might seem like one long April Fools' Day joke. From wildfires and demonstrations, to tweet storms and rapid resignations, each month had us both dreading and eagerly anticipating the next news cycle.
The workplace—no stranger to drama and upheaval at any time—has not been spared. Over the last few months, many employees have sounded the alarm about sexual harassment (not funny). One issued a false alarm about an impending nuclear disaster (also not terribly funny). Sometimes Human Resources departments don't know whether to laugh or cry.
In anticipation of April Fools' Day, we celebrate labor and employment cases and news that could be jokes, but aren't. If there's anything we've learned over the last year, real news and fake news are often hard to distinguish.
The Nation is Deprived of a Fabulous Oral Argument Transcript
While we all could use a change of scenery from time to time, two sheriff's deputies in Bossier Parish, Louisiana who took that idea to heart got fired for it. These law enforcement officials were evidently big proponents of sharing—or rather "swapping." Each moved in with the other's family while still married to his original spouse. This profound example of "espirit de corps" did not endear them to their higher-ups.
Upon hearing of the new arrangements, the Chief Deputy Sheriff placed them on administrative leave for violating the Sheriff's Code of Conduct, which includes the following standard:
Conduct yourselves at all times in such a manner as to reflect the high standards of the Bossier Sheriff's Office ... [and] Do not engage in any illegal, immoral, or indecent conduct, nor engage in any legitimate act which, when performed in view of the public, would reflect unfavorabl[y] upon the Bossier Sheriff's Office.
The deputies were also accused of violating a provision requiring them to inform their direct supervisors within 24 hours of a change of address—a measure originally intended to ensure officers can be reached in an emergency rather than to monitor wife-swapping.
The deputies were ordered to cease living with non-spouses by a deadline or be considered to have voluntarily quit. The deadline passed unheeded. Of course the deputies then filed suit, alleging their First Amendment right to freedom of association had been violated. The district court found no such violation, and the Fifth Circuit affirmed.1 According to the appeals court, the deputies provided no case law suggesting that they, "as public employees of law enforcement agencies, have constitutional rights to 'associate' with each other's spouses before formal divorce." The court explained further that "[s]exual decisions between consenting adults take on a different color when the adults are law enforcement officers."
In a last-ditch effort to preserve their jobs and (modified) family units, the deputies appealed once more. The Supreme Court declined to hear the case, however, thereby depriving us from finding out whether Justice Kennedy would have provided the "swing" vote.
Don't Hate Me Because I'm Beautiful
Speaking of healthy marriages, during the last year at least two courts made clear that the explanation "my spouse told me to" might not fly in a discrimination lawsuit. In one case, a New York appeals court allowed a yoga/massage therapist to move forward with her claim that she was unlawfully fired on the basis of gender. The plaintiff worked at a chiropractic and wellness center co-owned by a married couple. The reason for her termination? The wife/co-owner deemed her "too cute" to work there.2 Although the plaintiff's relationship with the husband/co-owner was platonic, he warned her that his wife—a former Playboy model—might become jealous.
Sure enough, several months into the plaintiff's employment, she received a text warning her to "stay the [expletive] away from my husband and family!!!!!!!"3 The husband/co-owner fired the plaintiff in an email shortly thereafter, explaining, "You are fired and no longer welcome in our office. If you call or try to come back, we will call the police."
The lower court dismissed the discrimination claim, but the appeals court found that, while the plaintiff did not allege she was subject to sexual harassment, "she alleges facts from which it can be inferred that [husband/co-owner] was motivated to discharge her by his desire to appease his wife's unjustified jealousy, and that [wife/co-owner] was motivated to discharge plaintiff by that same jealousy." The court explained that under New York law "it is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination." In this case, the court found the motivations to terminate the plaintiff were indeed sexual or sex-based in nature, and therefore could support a viable claim.
Two months later, a district court in Pennsylvania denied a trucking company's motion to dismiss a manager's disparate treatment and hostile work environment claims also stemming from "spousal jealousy."4 The company president's wife purportedly did not want her husband to work with or even look at female employees, and allegedly became upset when the plaintiff, a woman, began working with the president. As a result, the president began to avoid eye contact with the plaintiff, excluded her from meetings, and communicated to her through her subordinates.5 The president informed the plaintiff that she was an excellent employee, but was being fired only because his wife did not approve of his working closely with women.
Plaintiff was briefly re-hired before being terminated a second time. During this interlude, the president's wife paid the office a visit and "embraced Plaintiff and firmly pressed her breasts against Plaintiff in a manner that made Plaintiff feel uncomfortable and intimidated."
After the plaintiff was terminated the second time—and given the same reason—she filed suit. The court reviewed cases in which spousal jealousy was asserted as a defense. While this might be considered a lawful reason to fire a particular individual in certain circumstances, the court found that in this case the spouse was unlawfully jealous of an entire protected class. The disparate treatment claim therefore survived.
The court also found that the plaintiff had pleaded sufficient facts to state a plausible hostile work environment claim, which included the aforementioned "uncomfortable and intimidating embrace"6 involving the president's jealous—but "affectionate"—wife.
Tools in a Union Shop
Although private-sector union membership has been on the decline, the Retail, Wholesale and Department Store Union (RWDSU) may have embraced a new organizing niche. In June 2017, workers at two New York City branches of the Pleasure Chest, a purveyor of sex toys and related "marital-aid" apparel and paraphernalia, voted unanimously to "throw off their chains" and join the union. This is the second group of such sex toy chain employees to join the RWDSU. Further research on the industry's union participation rate and the union's organizing techniques has been blocked by our firm's internet firewall.
Subcontracting Gone Wild
Unions have often charged that an employer's failure to bargain over its use of subcontractors is an unfair labor practice. But do those subcontractors need to be human?
In 2016, Western Michigan University hired a crew of 10 goats to clear an overgrown area of the campus. According to goat outsourcers Munchers on Hooves, LLC,7 goats are quiet, efficient, and provide their own natural fertilizer. And, in most cases, they do not make spouses jealous. Ten more goats were hired in 2017 after the pilot program proved to be a success.8 But, not all were pleased with this environmentally-friendly source of land management.
Although WMU officials denied that any human workers were displaced, the stubborn American Federation of State, County and Municipal Employees gruffly filed a grievance over the college's use of the goats.9 As far as we know, the goats have not yet sought their own union representation10— nor have they expressed any fear (as described in the next section) of being associated with the Mark of the Beast.
With Scanning and Fingerprinting, the Devil is in the Details
Citing the fear of eternal damnation to avoid an employment requirement is no longer that uncommon.
Last year we reported on a jury's awarding nearly $600,000 to an employee who claimed he was forced into retirement after being refused a religious exemption from a policy requiring employees to clock in and out using a biometric hand scanner—a practice he believed would be used by the Antichrist to identify followers with a "Mark of the Beast."11 The Fourth Circuit affirmed the jury verdict in June, giving us yet another excuse to mention it.12
Five months later, the courts were blessed with a similar fact pattern.13 A former school bus driver was suspended for refusing to submit to fingerprinting, as required by a new state regulation. The Pennsylvania Unemployment Compensation Board of Review denied her application for unemployment benefits because it determined she did not have good cause to violate her employer's policy. She claimed she feared she "will not get to go to Heaven because I'm marked—the mark of the devil." The court, however, found the Board erred in determining her beliefs were personal and not religious, even though this belief did not stem from formal religious training—but rather acquired from her Christian Evangelist household. The denial of benefits was reversed. We do not prophesy where such theories may lead the courts next year.
Hell Hath No Fury Like an Employee Vaccinated
In the same vein, a recent complaint alleges an employer's flu shot policy discriminated against an employee on the basis of her religion.14
The complainant works as a certified nursing assistant in a nursing home and rehabilitation facility owned by Ozaukee County, Wisconsin. Employees are required to have yearly flu vaccinations, but can obtain a religious exemption (and wear a mask during flu season) by providing a "written statement from their clergy leader supporting the exemption with a clear reason and explanation" for declining the vaccine. The complainant sought a religious exemption without providing such a letter, explaining that her personal interpretation of the Bible prohibited her from putting certain foreign substances, including vaccines, into her body because it was a "Holy Temple." She was unable to provide an exemption letter, as she was not affiliated with any church or organized religion. The facility gave her the option of receiving the shot or resigning. She chose the shot.
Blessed with its own form of insight, the U.S. Department of Justice filed suit, alleging the county's policy discriminated on the basis of sincere religious beliefs, and that, as a result of submitting to the vaccination, the complainant suffered "severe emotional distress." The repercussions allegedly included her withdrawal from her work and personal life, sleep deprivation, anxiety, and a nagging "fear of 'going to Hell' because she had disobeyed the Bible by receiving the shot."
Ain't no Party Like an RFID Chip Party
George Orwell's "1984" was so Twentieth Century. Last summer, Three Square Market (32M) became the first U.S. employer to give employees the option of being microchipped. The Wisconsin-based company specializing in self-service office break room vending machines offered to implant employees with radio-frequency identification (RFID) chips they could use to "make purchases in their break room micro market, open doors, log in to computers, use the copy machine, etc."15 RFID chips use electromagnetic fields to identify electronically stored information.
Although most office parties are a tad painful, this office party scaled new heights. The company reportedly hosted a "chip party" (just chips, no beer) on August 1, 2017, where volunteers had the devices implanted under the skin between the thumb and forefinger. In an interview with CNBC, 32M CEO Todd Westby claimed, "As far as it hurting . . . it feels like basically somebody stepping on a pinky toe with a dress shoe on. It really doesn't hurt at all."16 Westby did not specify whether he meant a men's or women's dress shoe—perhaps by design.
The microchips do not have GPS capabilities at this time, so if employees escape, there is no guarantee they will be returned safely.
Thou Shalt Arbitrate Thy Claims
The terms of an employer's arbitration agreement typically govern disputes brought by employees, and this proved to be the case even when the agreement required the employee and arbitrator to answer to a higher authority.
In a case out of the Northern District of Ohio,17 a plaintiff sued her employer, a private Christian school, to recover unpaid wages she believed were owed under state and federal law. The school moved to stay the proceedings pending arbitration of the plaintiff's claims, per her employment agreement. The plaintiff asserted the agreement was unconscionable, and therefore void and unenforceable. The terms of the agreement read, in relevant part:
I agree to attempt to resolve differences with others (parents, fellow-workers, administration and any other person affiliated with [the school]) by following the biblical pattern of Matthew 18:15-17. . .Should unresolved issues remain even after following the above process . . . [disputes] shall be solved and settled by Christian mediation and, if necessary, legal binding arbitration in accordance with the rules of procedure for Christian Conciliation . . .
Rule 4 of the Rules for Christian Conciliation requires conciliators to "take into consideration any state, federal, or local laws that the parties bring to their attention," but emphasized that "the Holy Scripture (the Bible) shall be the supreme authority governing every aspect of the conciliation process."
The plaintiff claimed that the agreement's condition that she submit to biblical scripture and make the Bible "the supreme authority" required her to forfeit her federal rights. The court disagreed, finding, among other things, that the plaintiff "[had] not explained how biblical law might conflict with the FLSA." The court therefore found the arbitration provision enforceable.
While it is unclear what exactly constitutes biblical dispute resolution, it presumably involves more than each party exacting an eye for an eye or continually turning the other cheek—depending on the individual's preferred body part.
Do You Believe In Magic?
All's fun and games until someone conjures wage and hour violations and other legal hocus pocus.
Case in point: last year, a plaintiff filed suit on behalf of himself and a potential class of individuals who "worked" as tournament judges for the fantasy card game "Magic the Gathering." Much like Washington, D.C., the game is set "in a fantasy world of powerful Wizards who have the ability to teleport between planes of existence." Game tournaments are often held in stores where the cards are sold, and presided over by "judges" who have completed a certification program run by the game's seller, defendant Wizards of the Coast, LLC. In the plane of existence known as the Northern District of California, the plaintiff claimed the card company had failed to pay him minimum wages and overtime, provide meal and rest breaks (or spells), maintain accurate payroll records, and reimburse him for business expenses, in violation of federal and state law.18
The defendant moved to dismiss, asserting that plaintiff was not an employee, but rather a "Magic card game enthusiast who voluntarily became a Judge in pursuit of his hobby." The plaintiff, however, countered that he should be "presumed" an employee, and that the "economic realities" between the parties supported his wage and hour claims under the FLSA.
The court refused to play by plaintiff's rules. With respect to judges' being "presumed" employees, the court emphasized that "[o]ther than using the conclusory term 'work,' Plaintiff has failed to allege facts to establish an employer-employee relationship with Defendant."
As for the "economic realities" standard articulated in the Supreme Court's opinion in Alamo Foundation v. Sec'y of Labor, the plaintiff said the defendant depended on judges to maintain the "lifeblood" of its business," and in exchange for their service, compensated them, albeit in the form of Magic playing cards.
Again, the court disagreed, finding the plaintiff's reliance on Alamo "misplaced." Alamo involved a lawsuit brought against a religious foundation that provided "associates" with food, shelter and clothing. These individuals were "entirely dependent upon the foundation for several years." The Supreme Court held they were employees for FLSA purposes because they worked "in contemplation of compensation." In the instant matter, "the only 'compensation' Defendant provided to Plaintiff throughout his eighteen plus years as a Judge was in the form of Magic playing cards and product. Unlike the 'associates' in Alamo, Plaintiff was not entirely dependent upon Defendant for the basic necessities of life."
That job would likely fall to the judges' parents, in whose basements many most likely still live.
Pardon My French
French culture typically includes fine wine, soft cheese, haute couture, stately architecture, and unabashed rudeness.19 Or at least that's what a dismissed server in British Columbia is arguing.20 Sacrebleu!
The former restaurant employee filed a complaint with Canada's British Columbia Human Rights Tribunal asserting he was unlawfully terminated in violation of the governing Human Rights Code. The restaurant countered that the server was instead fired for his "aggressive tone and nature with others," which constituted a violation of the restaurant's Respect in the Workplace Policy. This policy calls for a work environment "free of verbal, racial, physical and sexual harassment, bullying violence or threat of violence..." The server signed a letter acknowledging that "intentionally speaking to a Guest or Associate in a rude or unfriendly manner" could be grounds for dismissal.
The restaurant detailed several incidents involving the server's alleged temper and aggressive interactions with his co-workers, which included his speaking "loudly and rudely." Yes, he may have rolled his eyes at the thought of pairing a Cotes du Rhone rather than a Pinot Gris with the foie gras appetizer, but this torment could put anyone over the edge.
The server, however, claimed he was discriminated against based on his culture, which "tends to be more direct and expressive." In other words, he was not violating company policy, just being French—enduring an eternity of hopeless struggle. (His argument, not ours).
To his point, French writer Albert Camus also posited that nihilism and absurdism are intertwined philosophies. As far-fetched—or absurdist—as the server's argument may seem, it will live to see another day. On March 7, 2018, the Tribunal determined that it had insufficient facts on the record to dismiss the matter without a hearing. During such a hearing, the server will have to provide evidence "about what exactly the stereotype is with respect to people from France" and what it is about his French heritage "that would result in behaviour that people misinterpret as a violation of workplace standards of acceptable conduct."
This will be a challenge for him, as Americans are not likely to give up their own cultural claim to rudeness and aggression.
Nope, Not Creepy at All...
Job interviews can be as awkward and intimidating as blind dates—but without the movie or cocktails. One company has taken the blind interview approach to a whole new level. A German grocery chain has started interviewing job candidates at job fairs in total darkness.21 The reasoning behind the use of a pitch-black interview room is an admirable one: not being able to see the candidate can, in theory, help reduce the chances he or she will be discriminated against on the basis of appearance, race, sex, or foreign name. Whether this experiment will serve its intended purpose is uncertain. If all else fails, the company could always recycle the black interview boxes to use as fortresses of solitude, something a great many of us could use these days.
And so we end another April Fools' Day with the promise that—as sure as death, taxes, the tide, and ubiquitous political scandals—there will be plenty of other off-beat employment cases to discuss next year. No joke.22
Footnotes
