Joel Dillard

Representing Mississippi Workers

The Mississippi Workers' Rights Blog

Free speech concepts in the private sector

I guess it is time for our annual reminder. There is a big difference between what government can do to citizens and what citizens can do to each other. In fact, this is perhaps the key idea running through all of constitutional law.

Last year at this time, I wrote: What this means is that the First Amendment will have no bearing on, for example, how Facebook punishes or regulates the speech of its users, or how Walmart punishes or regulates the speech of its employees. In fact, if Facebook or Walmart want to take a political stand on an issue and censor users or employees that disagree, the government and the courts typically cannot intervene because that would infringe the free speech rights of Facebook or Walmart.

Let's remember this: Facebook sells a product. The product is your speech. If it doesn't like the product you are making for it, it can reject it, and deplatform you, or anyone it wants, for any reason or no reason at all. It owes you no explanations for any of these basic business decisions.

Do I like this? Not really. I personally think it worth considering whether our major platforms should be truly public. The government could operate social platforms like a utility. You want to end censorship and preserve free speech on the internet? The only way really is to put the government in charge. Then censorship will be restricted by constitutional principles and subject to court oversight to safeguard our freedoms. Otherwise free speech will actually mean the freedom of the owners of the platforms and portals of the internet to completely control its content.

This is the basic intellectual emptiness at the heart of libertarianism. Freedom as we usually understand it - lived freedom - requires the affirmative creation of public spaces and the means for the exercise of freedom. And that means that either government must heavily regulate private enterprises that create those spaces, or it must create the spaces itself. Otherwise, the only freedom will be the freedom of the owners of real and virtual spaces to crush and control the opposition.

Which I guess everybody is cool with when they are in charge. But guess what, friends... there's always somebody bigger than you out there. Maybe we shouldn't be so quick to assume that government is the bad guy. Government can at least be reined in with our robust public oversight institutions. And sometimes it is our only chance to create any playing field at all, let alone a level one.

Breastfeeding discrimination is unlawful

Under federal law, it is illegal to discriminate against an employee because she was lactating or expressing milk. EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (2013). This means that, if the employer gives breaks to employees for other reasons - smoke breaks, bathroom breaks, etc. - it also has to give comparable breaks to pump milk. Hicks v. City of Tuscaloosa, 870 F. 3d 1253, 1260-61 (11th Cir. 2017). The Supreme Court has spoken, and there is no longer any room to doubt it. Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 1354 (2015).

Mississippi state law gives the same guarantee to employees, even of very small employers not covered by federal law: No employer shall prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer. Miss. Code § 71-1-55.

The Fair Labor Standards Act - more famous for guaranteeing minimum wages and overtime - was recently amended to guarantee (unpaid) pumping breaks. The employer shall provide (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. 29 U.S.C. § 207(r)(1). If an employer violates this law, and the employee makes a complaint about it, the employer cannot retaliate against the employee for it. 29 U.S.C. § 215(a)(3).

There are extremely compelling reasons for this law, as we've written about before: workplace protections for breastfeeding can save lives and improve the health and intelligence of the next generation of Americans.

Not being proactive about protecting breastfeeding can open the employer to an embarrassing and potentially costly lawsuit - in addition to being illegal and unwise.

So get the word out. You can work and breastfeed. You don't have to accept the bathroom as good enough. Pumping breaks are protected. Breastmilk should be exclusive to six months and the primary nutrition for a year. Save the babies.

Thanking God for Getting Fired

A few years ago a friend of mine wrote something amazing about his experience getting fired. I've shared it with clients and others that have called from time to time, and wanted to share it with everyone because I think it is very powerful.

I can't tell you how many times we've talked to people facing something like this - probably a dozen or more per week. Though I myself have not faced anything like this yet, it is a basic reality of the way we've decided to organize our economy and society; at some point in our lives, the vast majority of us will have a bad experience like this at work. Whether it is ongoing harassment, or a really toxic encounter with a boss or coworker, or a firing, something like this is to be expected eventually over the course of a full career.

This reality should give us compassion for others in these situations, and it should help us appreciate the importance of strengthening the laws protecting due process, free speech and equal justice at work.

It can also be an occasion for self-reflection, like it was for my friend. How can I get better? Where do I have strengths and weaknesses? How can I be a better person and a good provider? There are real opportunities in a setback like this. In particular, if this experience is part of a pattern - if you always seem to beef with somebody in every workplace, if things always go sideways after a couple months at a new job - this reevaluation and growth is especially important.

But this is key: do not to allow a frustrated expectation, bad encounter, or setback to shape your sense of who you are at a fundamental level. An isolated bad experience like this frequently reveals more about your situation - and our society in general - than it does about you.

The Enemy of Melancholy: Bishop Barron on Work

My work is about work. I have devoted my professional life to fighting for basic fairness in the workplace - which means due process, free speech, and equal justice. It was a pleasant surprise for me, then, to hear the unique spin which evangelist Bishop Barron put on the paean to the good wife in Proverbs 31. (I've skipped the first minute in which he introduces the wisdom literature generally.)

It is a bit of inspired brilliance. The title is somewhat misleading, as the comment about melancholy is just made in passing. This is about the spirituality of our daily work - from doing the dishes, to investing, to building things with our hands, to writing and intellectual work.

Bishop Barron's point is that our work is not something extraneous to the spiritual life, not something secular that we do alongside of our spiritual interests, but can be full of spiritual significance. It awakens our power as creators, and also remakes us in the process. In our work we become collaborators with God's creative energy. I hope you enjoy it.

Free Speech under the Mississippi Constitution

The freedom of speech and of the press shall be held sacred according to the Mississippi Constitution, Art. 3 Sec. 13. This is the strongest free-speech language I am aware of in any law anywhere. This language is far stronger than the First Amendment of the U.S. Constitution, which states only that Congress shall make no law . . . abridging the freedom of speech. As discussed in a past blog post, the Courts have interpreted the language Congress shall make no law as limiting the First Amendment to state action.

But the Mississippi Constitution may not be limited to actions of the government. It says, flatly, that this freedom shall be held sacred, and presumably this means it shall be held sacred by everyone. If true, the implications of this could be staggering - unthinkable even. Certainly it is an interpretation well worth serious consideration.

Yet this language has been quoted only about ten times by the courts since 1950. Some of the discussion in the cases suggests support for the idea, e.g, They are not idle and meaningless terms, but signify philosophical concepts of a constitutional republic and of the intellectual independence of every citizen. Evers v. State, 131 So. 2d 653 (Miss. 1961). But the courts have rarely - if ever - deliberately distinguished this broader language in the Mississippi Consitution from the federal First Amendment. They have only said, in passing, that We are of the opinion, without deciding, that Article 3, Section 13, supra, by modern-day standards, appears to be more protective of the individual's right to freedom of speech than does the First Amendment since our constitution makes it worthy of religious veneration.ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123 (Miss. 1976). Accord Gulf Pub. Co., Inc. v. Lee, 434 So. 2d 687 (Miss. 1983).

Perhaps it is an idea whose time is coming.

The NLRB’s misguided General Motors decision and so-called civility at work

Today's post is by one of the firm's Peggy Browning Fellows, Nicholas Stonecypher.

The NLRB’s recent decision in General Motors, 369 NLRB No. 127 (July 21, 2020) restricts the right to engage in union activity. Setting itself up as a defender of civility, respect, and order in the workplace, the Board holds that discourteous union activity is not protected by the National Labor Relations Act.

The basic concept here is not new. It is against the law to fire an employee because of his or her union activity. But not all union activity is protected by law. Violence, unsafe behavior, and other violations of valid employer rules can be legitimate reasons to terminate an employee, even if union activity is also involved. This has been the law for decades. If the employee crosses the line the union activity is no longer protected. What the General Motors decision did is move the line. It is now more difficult to protect employee organizing.

Under the prior rule, an employer’s punishment of worker outbursts during union activity was evaluated by considering four factors:

  1. the place of the discussion;
  2. the subject matter of the discussion;
  3. the nature of the employee’s outburst; and
  4. whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
Atlantic Steel Co., 245 NLRB 814 (1979). The judge would consider the outburst as part of the protected activity, and then ask whether the worker lost protection because of the abusive outburst.

For example, a black union worker at GM told one of his managers to (1) shove it up [his] f---ing ass, (2) responded to another manager’s request to talk quietly by mocking the manager as a slaveowner, and (3) on another date said that he would mess [the manager] up. Under the Atlantic Steel Co. test, the second and third actions would be unprotected, and the employee could be fired for them. But the first one was protected. This was because, although it was extremely crude, it did not cross the line drawn by Atlantic Steel.

That was not good enough for this NLRB. The Board changed the rules to make it easier to find activity unprotected.

The Board’s reasoning is that profanity like this can be part of harassment. Under Title VII of the Civil Rights Act, (if the harassment is for an illegal reason) an employer is responsible for the harassment of its employees if the employer has knowledge of it but doesn’t take prompt remedial action. Therefore, the NLRB argued, employers were trapped between a duty to discipline harassing employees, and an obligation not to discipline workers engaged in union organizing. By punishing employers for disciplining harassers, the NLRA is undermining the anti-discrimination aims of the Civil Rights Act.

But, as the National Nurses United explained in their amicus brief, the Board is able to point to no such case in fact. That’s because there likely is no case where the Atlantic Steel rule protected conduct that violated Title VII of the Civil Rights Act. The Board points to several cases where offensive comments by workers involved in organizing a union were held to be protected by the Act. In addition to the instant case, the Board cites cases where workers shouted expletives at their employer as well as instances where workers hurled racial epithets. This is pure misdirection.

A harassment claim under Title VII requires the plaintiff to show that the harassing conduct is more than an isolated incident, offhand comment, or mere offensive utterance. For conduct to constitute harassment it must change the terms and conditions of employment for the plaintiff. Indeed, NNU’s brief quotes the Supreme Court’s point that Title VII is not meant to become a general civility code. And yet, the Board now holds up Title VII to justify its imposition of just such a civility code. If the conduct that the new rule regulates doesn’t rise to the level of harassment, what exactly is it regulating? Union organizing. Why? Because employers find union organizing abusive.

Now, when employers punish workers for being abusive while organizing with their coworkers, workers will lose legal protection if the employer can effectively persuade the Board that the reason for the punishment was the profanity and not the union activity. The Board has decided that it can separate the outburst from the union activity.

But is this really possible? The Atlantic Steel standard was based in a very practical understanding that the protections Section 7 affords would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses. Consumers Power Co., 282 NLRB 130, 132 (1986).

Consider captive audience meetings, which are a tried and true anti-union tactic. Employers hold mandatory meetings, staffed by high-paid labor lawyers and consultants to persuade employees to vote against the union. Employers, who cut the checks that keep the lights on in each of their workers’ homes, require them, on pain of dismissal, to attend a meeting filled with anti-union propaganda. Could a worker standing up to say F--- you, I’m voting for the union now be more easily dismissed?

The new rule applies the Wright Line standard which proceeds in three steps. (We've previously posted on Wright Line in plain language on this blog!) First, it requires the punished worker to show that she

Second, the employer then has the burden of proving that he would have fired the union worker for the outburst, even if she wasn’t engaging in section 7 activity. In other words, the boss has to convincingly argue that the only reason they’re firing her is because she said F--- you . . . and not because she said . . .I’m voting for the union!

Third, if the employer is convincing, then the worker gets one more shot to show that the employer’s explanation in the second step is not persuasive; that it is just an excuse.

It’s an open question how far this goes. Employee speech at work is still technically protected by the NLRA, but now AJs sensitive to civility have the basis they need to rule against workers. The Board is notorious for flip-flopping rules just like this as the Board appointees shuffle back and forth between Democrat and Republican.

Workers should know that they can still talk about union organizing at work. And if your employer retaliates, it is still unlawful. Just try to remember to quietly say darnit instead of shouting g--d---it so as not to upset the delicate sensibilities of your exploiters. Or the Board.

The Future of Religious Accommodation and Discrimination

Last time we talked about the current law on religious discrimination. Today we'll dig deeper on religious accommodation.

In 1964, Congress outlawed discrimination based on religion in the workplace. Congress also required the employer to accommodate the religious practices of its employees, unless doing so would be an undue burden.

But early on, in 1977, the Supreme Court heard a case about how much burden was due, and said that the employer was not required to do anything that was more than de minimis - latin for itty-bitty. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 84 (1977). This means that if it was even mildly inconvenient for the employer, the employer was not required to accommodate the religious practice. It completely eviscerated the statute.

That may be changing. The government has asked the Supreme Court to take up the issue and expand this protection, so that the term undue burden means something real. Although the Supreme Court has not yet taken up the issue, Justices Alito, Thomas and Gorsuch have written a short opinion indicating that, when the right case comes along, they intend to take the issue up and will support expanding the protections of the law.

I think it likely that the liberals on the Court would also support this. (Marshall and Brennan dissented in Hardison.) Practically, this means that there is a good chance that, in the right case, the Court will unanimously or near-unanimously expand the protections against religious discrimination in Title VII. I look forward to it.

Employers must accommodate religion, but only if they know suspect there is a religious need for accommodation

Today's post is by one of the firm's Peggy Browning Fellows, Mary Kate Dugan.

Most Americans understand that the First Amendment protects one’s right to practice religion from governmental interference. However, many would be surprised to learn that they also are entitled to certain religious rights at work, even if they work for a private company. Under Title VII of the Civil Rights Act, the federal government forbids employers from discriminating on the basis of religion and imposes the duty that employers reasonably accommodate an employee’s religion.

Under Title VII, an employee’s right to religion takes several forms. An employer cannot consider a job applicant’s religion as a factor in its decision to hire an otherwise qualified job applicant. Additionally, an employer cannot factor in an employee’s religion in a decision about whether to promote, determine compensation, discipline, or fire an employee. Importantly, Title VII defines religion to include not only religious belief, but observances and practices. Therefore, employers have a duty to reasonably accommodate the religious observances and practices of their employees. If an employer cannot reasonably accommodate an employee’s religion without incurring undue hardship, or an undue burden to itself, the employer has a defense against a charge of discrimination.

All of these issues came to bear in the 2015 Supreme Court case, EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028. In that case, a Mulism woman applied and interviewed to work at a nationally branded clothing store. Concerned that the job applicant’s headscarf would violate the companies’ workwear look policy, and that she would not be willing to remove it due to her religion, the manager decided not to hire the applicant. The Supreme Court ruled that religious discrimination did not require the manager to have actual knowledge of the applicant’s need for an accommodation: instead, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

Although actual knowledge is not required under Abercrombie, a plaintiff still must prove discriminatory motive. A subsequent decision by the Fifth Circuit in Nobach v. Woodland Village Nursing Center, 799 F. 3d 374 (5th Cir. 2015), provides caution on this point. In Nobach, a nursing home activities refused to pray the rosary with a patient. When the patient complained to a manager, the manager fired the aide. During her firing, the aide told the manager that she had refused to do the rosary because it was against her religion. The manager replied, I don’t care if it is against your religion or not. If you don’t do it, it’s insubordination.

While the aide won her jury trial, she lost on appeal. The Fifth Circuit stated that it simply cannot find evidence that, before her discharge, [the employee] ever advised anyone involved in her discharge that praying the Rosary was against her religion. In other words, the employer could not have been motivated by the employee’s religion if it was never aware of her religion. Therefore, there was no religious discrimination. The Abercrombie case highlights a nuance in Title VII religious discrimination law: an employer need not have actual knowledge of an employee’s religion for an employee to prove a discriminatory motive. But Nobach foregrounds the main rule: to prove discrimination, an employee must prove a discriminatory motive, and that means showing that the employer at least suspected that a conflict between the employment duties and an employee’s religion. While almost all employee’s retain religious rights in the workplace, those rights can be tricky to assert. If you are in a position where your religion has put you at odds with your workplace policies or your job responsibilities, consider consulting with a lawyer before you go asserting your rights.

Breastfeeding and pumping at work

Today's post is based on the excellent work of Dr. Joan Younger Meek, MD, MS, FAAP, FABM, IBCLC. Doctor Meek is the Past-Chair of the American Academy of Pediatrics Section on Breastfeeding and the Associate Dean for Graduate Medical Education at Florida State University College of Medicine.

The benefits of breastfeeding for children and mothers are clear. It prevents infant illnesses, promotes optimal growth of the child and improves the intelligence and health of the child throughout his or her life. Lack of breastfeeding worldwide is thought to be responsible for 800,000 childhood deaths a year. Breastfeeding also has health benefits for the mother. About 20,000 cases of preventable maternal death from breast cancer are attributed to lack of breastfeeding.

The scientific and medical consensus is that babies should be exclusively breastfed for at least the first six months of life, with continued breastfeeding at least through the first year of life and beyond, as long as mutually desired by mother and child. Breast milk should remain the primary source of nutrition throughout the first year.

A lack of workplace support for breastfeeding contributes to failure to follow these essential health recommendations. Rules guaranteeing pumping breaks are associated with an 8-9 percentage point increase in exclusive breastfeeding. Lactation rooms and breaks to express breastmilk increase total breastfeeding at 6 months by 25%. For this reason, the medical and scientific community overwhelmingly supports recent changes in the laws protecting breastfeeding, and particularly pumping at work.

These changes include requirements that all employers provide breastfeeding mothers paid pumping breaks as needed (in a private place other than the bathroom).

Breastfeeding is one of the most powerful experiences mother and child can share. The mother can nurture her child in this unique and loving way, knowing that she is giving her child better health, intelligence, and wellbeing for the rest of her child’s life. But to do so, a working woman needs the employer to provide a protected space and time where she can pump. It is not much, but it is absolutely essential. A new mother should not have to choose between her job and her child’s wellbeing.

It is a crime to retaliate against a public employee for doing her job.

In my never-ending search for ways to protect the free speech rights of employees, I have recently developed a legal theory that I think has a lot of promise.

The problem: the law protecting internal whistleblowers in state/local government is weak or nonexistent

The problem is that, as discussed in a prior post, a government employee's whistleblowing up the chain of command is not protected by the First Amendment of the U.S. Constitution. And as discussed in another post, only official discipline is considered retaliation under the First Amendment. There is a Mississippi Whistleblower Protection statute, but it also only applies to a small category of protected speech - typically reports to specific public officials like the AG, DA, etc. that most whistleblowers never think to call.

After all, most government employers have strict (and illegal) rules prohibiting reporting misconduct outside the Agency, and act as if they have an open door policy (whatever that means) for reporting up the chain of command or to HR. (Guess what, it's a trap!) Which means that most whistleblowers have only made their reports internally. There are a lot of serious limits on our ability to protect these whistleblowers in state and local government using the U.S. Constitution.

The solution: McArn plus Miss. Code § 97-9-127

In Mississippi, the tort of wrongful discharge is named after the case​McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993). Under the​McArn doctrine, as subsequently developed, it is tortious to terminate any person’s employment because the employee reported a crime - either internally or externally. Morris v. CCA of Tenn., LLC, (Cause No. 3:15-CV-00163-MPM-RP​)(N.D. Miss. May 16, 2017).

So far so good. That solves the problem for reports up the chain of command. These are protected by McArn. But the trouble is that most such reports by whistleblowers are not necessarily of a crime - at least, you would not think so initially.

But what is very common is that the whistleblower makes a first report of misconduct, is threatened by the supervisor, and then reports both the threat and the original misconduct further up the chain. The key point here is that now we just may have a protected report of a crime on our hands. The key question is what the threat was. If the thing threatened is unlawful - not necessarily criminal - then the threat is a crime. If the employee is later fired, there may be a real McArn claim.

The crime is Retaliation, Miss. Code § 97-9-127. It is much, much broader than retaliation is under the First Amendment. A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of public servant, witness, prospective witness or informant. Retaliation is a Class 2 felony. Young v. State, 119 So. 3d 309 (Miss 2013) (holding that the threat itself need not be unlawful, so long as the threat is to do an unlawful act);​Wilcher v. State, No. 2015-KA-01008-SCT (Miss. March 23, 2017) (upholding statute from constitutional challenge). In the statute, threats are defined as any menace, however communicated and harm is defined as loss, disadvantage or injury, or ​anything so regarded by the person affected. This would clearly include threats to fire or discipline. (It may be possible to use the statute more directly to establish a public policy exception for terminations for reporting non-crimes as applicable to public employees.) As one court said, [i]n the court's view, this state law authority may well buttress plaintiff's state law claim that his termination was in violation of Mississippi public policy.Boisseau v. Town of Walls, Miss., 138 F. Supp. 3d 792, 808 (N.D. Miss. 2015). And the employee does not necessarily have to know about the statute to benefit from it, as long as he makes a good faith allegation of retaliation. Roop v. S. Pharm. Corp., 188 So. 3d 1179, 1188 (Miss. 2016). Though it still isn't airtight by any means, it solves many of the key problems with the First Amendment and McArn cases.


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