Joel Dillard PA

Representing Mississippi Workers

The Mississippi Workers' Rights Blog



A Lawyer's Prayer

There is a famous lawyer's prayer that I love. It captures much of the unique ethical obligation of the attorney, and I thought I'd share just one small part of it with you today. We pray that:

For the glory of God an in the pursuit of His justice,
I may be trustworthy with confidences,
keen in study, accurate in analysis,
correct in conclusion, able in argument,
loyal to clients, honest with all,
courteous to adversaries, and ever attentive to conscience.

These are modest, basic qualities that every lawyer must have. In fact, they match up closely with the ethical rules governing the profession:

Where the prayer falls short is in leaving out the duty of every attorney under Rule 6 to represent persons of limited means either directly or through representation of organizations in matters that are designed primarily to address the needs of persons of limited means. This is one way in which the lawyer lives out the preferential option for the poor. In fact, lawyers have a special role in every aspect of Christian social teaching. But that is a topic for another day.



Veterans Day

Veterans enjoy some unique employment protections, an apt topic for this Veterans Day. The federal statute is called the Uniformed Services Employment and Reemployment Rights Act - or USERRA - and it has a counterpart in many states under state law as well. This includes Mississippi.

First of all, the statute prohibits discrimination against veterans. 38 U.S.C. Sec. 4311(a). This is fairly straightforward.

The unique feature of the law, however, is that it gives any person the right to leave work for up to five years to go into the military, and then demand his job back. This includes short breaks from work (such as for a brief reserve call-up or training) as well as a lengthy and continuous break, such as for a multi-year deployment. 38 U.S.C. Sec. 4312.

All that is required is for the person leaving for the military to give written or oral notice that he is going into the military when he leaves the job, and then to apply for reemployment promptly on his return. 38 USC Sec 4312(a); see also 38 USC Sec 4312(e) for what I mean by promptly. He does not have to inform the employer that he intends to come back to this job before leaving.

The employer has a possible defense, but it is not simple. To avoid the requirement to rehire the employee, the employer usually must prove that the employer’s business has changed such that reemployment is impossible or unreasonable. 38 USC Sec 4312(d).

And the employer cannot retaliate or harass the veteran for exercising his reemployment rights. 38 USC Sec 4311(b).

The veteran is not only entitled to get the same or similar job back, he is entitled to be treated as if he had been continuously employed in the meantime. In other words, he should still be accumulating seniority, leave, benefits, and pay raises during the time he is in the military - even though he is not at work or even on the employer rolls. The statute says he must be reemployed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service or else in a position of the similar seniority and status. 38 USEC Secs 4313, 4316, 4317, 4318,

This includes the right to retirement benefits accrual and contributions - although the employee will usually have to buy back the employee contributions he missed in the meantime.

State law provides additional protections. In particular, it is a crime - a misdemeanor with fine or prison term up to 6 months - for any employer to discriminate against a veteran or member of the reserves. Miss Code 33-1-15. And because of the McArn doctrine (discussed elsewhere on this site), a veteran who experiences such discrimination cannot be fired for reporting it.

In addition, Mississippi has a reemployment statute also. A person in the employ of any employer in the state shall be entitled to be restored to his previous or a similar position, in the same status, pay and seniority, and such period of absence for military duty or training shall be construed as an absence with leave but may be without pay. Miss Code 33-1-19. Crucially, the Mississippi statute does not mention any notice whatsoever to the employer about the reason for leaving, nor does it have a 5 year limitation on the military leave taken. This means that, even after decades of military time, employees in Mississippi may still have a means of securing reemployment.



Overtime class actions

Class action. Two words which strike dread into the heart of big business.

A class action is a lawsuit which is filed by a group of people to vindicate all their rights together, in one case. This is mostly useful for claims which are - by themselves - too small to justify a lawsuit, but which add up to a massive theft. Wage claims are prime examples. A large company stealing $1,000 a year from 1000 employees makes for a two or three million dollar lawsuit.

The companies have been fighting against this for decades, with significant progress recently. Just this year, the Mississippi Supreme Court rejected ALL class actions in state court, and the U.S. Supreme Court in the Epic Systems case held that arbitration waivers are lawful. Meanwhile, cases like Walmart v. Dukes create new challenges for certifying class action cases even when they are not outright unlawful.

But the story is far from over. Even in cases where the class action does not wind up very useful, there are still a number of closely related tools that help reach a fair resolution of these kinds of claims.

If stuck with an arbitration clause, you can just file 1000 identical demands for arbitration over that $1,000/year claim. The chances are pretty good that, if the employee's lawyer demonstrates that he can handle it, the company will get sick of the attorney fees - which they will still have to pay, regardless - and come to a global resolution.

Meanwhile, even in a case where there are significant differences between different people's claims, you can still use the notice procedure of the class action to identify the people interested in the lawsuit and resolve the joinder issue with Rule 19 instead of Rule 23.

For example, in a recent case, I had about 7 (out of 40 or so) people express an interest in the action. Rather than try (and probably fail) to certify a class, I simply amended the Complaint to add all of them as individually named Plaintiffs.

Granted, this will not work with 1,000s of people, but if a separate lawsuit is filed for each couple dozen - breaking them up by worksite, or by job title, for example - you will have a similar effect to filing the 1,000 arbitration demands. In fact, the employer itself may be the one turning this into something of a class action by filing motions to consolidate or for MDL litigation relief.

The upshot is that the corporations do not always realize just how useful class actions can be - for their own purposes as well. In particular, they lead to settlements that properly SETTLE the issue for once and all. Meanwhile, individual litigation only resolves the individual person's issue, leaving the company open to the uncertainty of numerous other potential lawsuits.



Is it legal to get fired by text message?

I was recently asked on Facebook whether it is illegal for a boss to fire someone by text message with no notice. The answer is: sometimes.

First of all, many states have rules requiring a certain form of notice to be given to the employee when fired (or shortly after). For example, in Georgia the employer is required by OCGA Section 34-8-190(c) to give an employee a Separation Notice, Form 800 at the time of termination. This form notifies employees of the reasons for termination and any severance pay. In Tennessee, a very similar form is required by Rule 0800-09-01-.02 of the Tennessee Employment Security Law, but the employer has 24 hours after the termination to provide it. In Louisiana, a similar form (LWC 77) must be filled out and mailed to the employee's last known address within three days after termination.

There is no such form required by Mississippi law.

However, if the employees have formed a union at the worksite, the employer is (almost always) required to give formal pre-termination notice to the union and bargain with the union about it. This was the holding of the NLRB in Alan Ritchey and Total Security Management. (Caution: the current GC may be targeting these cases for reversal.)

In addition, by state law, there are a variety of government employees in Mississippi that are entitled to formal advance notice of termination, from public teachers to municipal to state employees. (See prior post.)

Finally, there is the federal WARN Act and COBRA. The WARN Act requires that employers with more than 100 employees must give 60 days advance notice if they lay off 50 or more employees in a month (with certain exceptions). COBRA notice must be given to most employees with health insurance through the employer within three months after termination.

This review is not comprehensive, and there may be other reasons that it is unlawful to fire an employee by text message depending on the particular situation. But in general, the bottom line is that - unless there is a particular law against it - there is nothing to prevent an employer from firing an employee by text message and without any prior or subsequent formal notice.



Why (Most) Government Employees Cannot be Fired At Will

Many people at some time in their life are told - usually by a smug boss - that they can be lawfully fired at any time, without notice, for any reason or no reason. This is not exactly true, but it is not exactly untrue either. The truth is, most employees in the private sector can be fired at will, but the failure to identify a compelling reason opens the employer up to a variety of civil rights claims.

Government employment is a totally different story. Most government employees - including most government employees in Mississippi - have a right to due process, and can only be fired for cause. Indeed, for state-level personnel, the legislature created a Statewide Personnel System which protects all employees of state departments, agencies and institutions as defined herein, with only certain specific exceptions. Miss. Code § 25-9-107. The purpose is to ensure that hiring and firing are based on sound methods of personnel administration and to build a career service in government which will attract, select and retain the best persons. Miss. Code § 25-9-101; see also § 25-9-103. As a result, termination is only for cause. Miss. Code § 25-9-127. Similar civil service protections apply to most other civil servants as well, from the municipality, Miss. Code § 21-31-23; Miss. Code § 21-31-71, to the federal government, 5 U.S.C. § 7513.

In the rare case where a government employee in Mississippi is at will, the statute typically says so explicitly and in no uncertain terms, e.g.: However, any employee which the county administrator is authorized to employ may be terminated at the will and pleasure of the administrator. Miss. Code § 19-2-9(1). As the Fifth Circuit observed, the statutes are usually quite explicit about this: Many Mississippi statutes governing the employment practices of public employers expressly prescribe either a ‘terminable at will’ or a ‘for cause’ standard. Conley v. Board of Trustees of Grenada County Hosp., 707 F. 2d 175, 179 (5th Cir. 1983). At will termination is clearly the exception rather than the rule.

And for good reason. Robust civil service protections are perhaps the key weapon in the ongoing war against corruption and patronage, as a review of our history shows.

The founding fathers understood - as John Adams put it - that when the independence of the civil executive is compromised, it corrupts ‘as necessarily as rust corrupts iron, or as arsenic poisons the human body; and when the legislature is corrupted the people are undone.’ Henry Adams, Civil Service Reform, 109 The North American Review, No. 225, pp. 443-475 (Oct. 1869). The early Presidents maintained a strong but uncodified tradition of executive independence and rational administration over the first half-century or so of the nation. Id. But by the time of the Grant administration, things had definitely changed for the worse, as Adams’ great-grandson Henry observed: the executive which had originally been organized as a permanent system with a permanent and independent existence, and a temporary head, was wholly changed in its nature and as a result, civil servants were terminated for arbitrary or political reasons, resulting in profound corruption through all levels of government. Id. The evils of this system were obvious to all - particularly after President Garfield was assassinated by his own political operative, who was unhappy with the President’s decisions in awarding patronage. This resulted in his successor, President Arthur, signing into law the Pendleton Act of 1883, the first formal step toward preserving an independent corps of civil servants immune from patronage.

Adoption of similar systems in the states was uneven at first - political machines like Tammany Hall exerted enormous pressure to preserve their corruption and forestalled reformers repeatedly over the decades. But when Franklin Roosevelt crushed Tammany Hall by shutting off patronage, and tying the grant of funding to explicit civil service requirements, the fortunes of the reform movement began to turn, and, through slow and incremental progress, good government triumphed. Cf. Gergely Ujhelyi, Civil Service Rules and Policy Choices: Evidence from U.S. State Goverments, 6.2 American Economic Journal 338, 343-45 (2014). By 1950, more than half of states had comprehensive civil service protections. Id. at 347. By 1977, when Mississippi adopted comprehensive merit system protections, it was the 48th state in the nation to do so; robust civil service protections had become the norm. Id. Because patronage was the currency of machine politics, the direct result of the civil service system was to clean up the previously rampant corruption of the machine, from city hall to the state house.

There is a key difference between public and private employment: In the private sector, the at will employment doctrine protects private enterprise against government intervention. Indeed, the private employer’s right to fire employees is itself a property right of the private employer which cannot be deprived without due process. Brock v. Roadway Express, Inc., 481 U.S. 252, 260 (1987). By contrast, in the public sector, at will doctrine does just the opposite, shielding government corruption and arbitrary action. The at will doctrine in public employment explicitly countenances arbitrary action by government. That is a fundamental difference.



The First Amendment Free Speech Rights of Government Employees

It is illegal for a government employer to retaliate against a government employee for engaging in constitutionally protected free speech, like running for office or speaking out on public issues to the newspaper. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968). But not all speech is protected. The only speech which is protected is when the government employee spoke as a citizen on a matter of public concern. Anderson v. Valdez, 845 F. 3d 580, 590 (5th Cir. 2016).

So first, speech as a citizen means that the employee is not speaking in his role as a government employee. If it is in his job description or duties - like a cop's speech while walking his beat, or a teacher's classroom instruction - then it is not really the individual's own speech, it is the government's speech and the government can regulate and control it, including by firing the employee because they disagree with the employee's speech. When the employee is speaking for the government - that is, when the speech is part of the employee's job - then it is not protected by the constitution.

Second, gripes about internal workplace issues - coworker rudeness, disagreement about work rules, etc - is usually not protected either, because the speech must be of public concern. Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The inquiry turns on the content, form, and context of the speech. Lane v. Franks, 134 S. Ct. 2369, 2380 (2014).

So speech about a public issue (like an election) in a public forum (like a newspaper) in an article trying to achieve a public objective (like the victory of a particular candidate) is likely to be protected.

But there is one additional hurdle: what the courts call Pickering balancing. The court weighs the public value of the speech against the disruption it causes, and decides whether to protect the speech or not. So even the public speech of private citizens will not always be protected.



Unemployment benefits hearings:

A do-it-yourself guide

In Mississippi, employees who have worked more than six months likely qualify for unemployment benefits if they lose work. But winning them can seem intimidating - particularly after getting a denial letter from the unemployment investigator. That is not the end of the road. Many people successfully win their unemployment benefits after an initial denial, and they do it by themselves using the telephonic appeal process with the Mississippi Department of Employment Security (MDES).

The good news is that most people can successfully represent themselves in an unemployment appeal.

The law governing unemployment benefits

Employees who are fired are usually entitled to unemployment benefits unless the employer can prove that they fired the employees for misconduct. Layoffs, being left off the schedule, and even deep cuts in hours can trigger eligibility for benefits if sufficient pay is lost.

To prove serious misconduct, the employer's burden can be steep. The employer usually must prove either (1) that the employee did something obviously improper, like getting into a fist fight with co-workers; or (2) that the employee violated a written employer rule after clear and specific notice of the rule, as well as notice that termination was a consequence of violating it.

Employees who quit are usually not entitled to unemployment benefits unless they can prove that they left for good reason. This (usually) includes quitting in lieu of a demotion or termination. This (sometimes) includes quitting to avoid very serious harassment. The challenge in these cases is that it is up to the employee - rather than the employer - to prove the case.

For more information on the legal standards, this is probably the best source.

The procedure

There are three key procedural points.

First, employees are required to appeal a denial of unemployment very quickly. The appeal usually must be filed withing two weeks of the investigator's decision. Luckily the appeal request process is easy, and employees can appeal the decision by mail, fax, in person at any WIN job center, or even with a phone call. The instructions should be on the determination letter. Employees that do not timely appeal, usually cannot win benefits.

Second, showing up is half the battle. Both employee and employer will receive a written notice of a hearing date. The hearing is held by phone, and the employee and employer need to be ready to go when the time comes.

Many cases are won simply because one or the other side does not bother to show up for the hearing. Employees should always consider an appeal, even if winning is not certain, because there is a decent chance the employer will not show up to the telephone hearing.

Third and finally, note that anyone that wants to rely on documents in the hearing must send copies of the documents to both the MDES AJ and the other people listed on the hearing letter - and must do so in advance of the telephone hearing.

This is crucially important: if the employer tries to read from documents, testify about documents, or introduce documents into evidence at the AJ hearing and the employee didn't get a copy in advance, the employee can object - which just means telling the judge that the employee does not think the employer should be able to use those documents because the employer did not send them to the employee before the hearing. This includes documents that employer gave the employee at another time - if they didn't specifically give notice of using them at the hearing, then the employee can object.

The same is true for witnesses testifying about things they did not see, hear, smell, touch, etc. If an HR person tries to testify about misconduct that she did not personally witness, the employee can object to her testifying about hearsay, or without personal knowledge. Employees can point out to the judge if the witnesses for the employer did not actually witness the relevant events. This is also a common way these cases are won by employees.

By the same token, employees should be ready to go with their own witnesses testifying to what they saw and heard. This includes the employee's own testimony. If the employee did not get an employee handbook with notice that this was a fireable offense, it is possible that the employee could win the case by pointing that out.

No lawyer necessary

Employees should not be afraid to contest unemployment. Employees can represent themselves, and they often win for procedural reasons.



Specific statutes protecting whistleblowers:

An industry-by-industry guide

Virtually everyone is covered by some OSHA safety regulation or other, but the statute protecting employees that blow the whistle on OSHA safety violations - Section 11(c) of the OSH Act - is famously anemic. It is hard to convince OSHA's whistleblower office that the law has been violated, and if they rule against the employee there is no further recourse.

But there are a number of other industry-specific statutes, many of which do provide extremely robust protections to whistleblowers. These are some of my favorite cases, and this page will provide a brief survey of the law in some of these special industries. This review is not comprehensive.

The strongest protections are in the following industries:

In these cases, if the employee can show that the whistleblowing contributed in any way to their termination, then the employer must affirmatively prove by clear and convincing evidence that they would have fired the employee regardless of the whistleblowing - a difficult standard to meet.

Many of these cases can be tried in either federal court or in the offices of the administrative law judges in the Department of Labor. Although some of the ALJs are worse than others, on the whole the ALJs take their job seriously - and their sole job is, for the most part, protecting whistleblowers, so they really understand these cases.

It is a good forum to be in as an employee - so long as the attorney has experience with the forum and is able to manage the often breakneck pace of this kind of administrative litigation.



Victory for Carpet Installers in Overtime Case

The firm has scored a big victory on behalf of carpet installers in an overtime case in the Southern District of Mississippi. Judge Wingate granted the employees' motion for partial summary judgment, finding that the employer had violated the overtime provisions of the Fair Labor Standards Act. The case will now be set for trial solely on the question of damages. Read the full decision here.

Salary work is not always exempt.

This case is a reminder that an employee cannot be made exempt from overtime merely by paying a salary; the employee must also be performing work duties which qualify for the exemption - that is professional, administrative or supervisory work. Carpet installation and other blue collar manual work can never be exempt salary work.

Commissions are not bona fide if they aren't calculated correctly.

Meanwhile, the commission exemption in Section 7(i) will be lost if the employer does not apply the commissions in a consistent and accurate manner. Unexplained changes or errors in payment will cause an otherwise commission employee to become entitled to overtime.

In addition, the calculation of the guarantee in a commission system requires a great deal of careful accounting, and the balances must be reconciled regularly or else the guarantee will be treated as a salary and the employee may become entitled to overtime.

Entrepreneurs can be individually and personally liable

One final point to note: the owners will not be able to escape liability by bankrupting the company, because they will be individually and personally on the hook for the final judgment. This is one of those unique features of wage and hour law: individuals like owners, managers, and even HR officials can become individually liable to pay the unpaid wages of their employees.

This case was litigated by Joel F. Dillard, P.A., in association with Donati Law of Memphis. 

Too fast, too slow, too crooked, too straight:

The tangled net of federal employee civil rights

Federal employees have a tremendously complicated procedure to vindicate their civil rights. An employee who has been unlawfully terminated can easily miss significant advantages by using the wrong procedure.

Three Choices and No Time to Make Them

A terminated permanent employee can either file a union grievance, file an Equal Employment Opportunity claim with the Agency's internal EEO office, or file with the Merit Systems Protection Board. The choice typically must be made within a matter of only a few weeks. The procedures are widely different. For our purposes right now, I will focus only on the EEO and MSPB.

  1. EEO investigation - The employee contacts the EEO office and initiates an informal complaint. After 30 days of counseling the employee requests a formal investigation, and the Agency takes statements from all potential witnesses and gathers documents to complete a Report known as an ROI. The quality of these investigations varies dramatically from agency to agency.
  2. MSPB - Within 30 days, the employee files an appeal with the MSPB. There is a lightning fast discovery period - the attorney had better be on his game for this - and then a trial, usually within six months.

If you take the EEO route, you can always short-circuit it any time after 120 days to start an MSPB case or go to federal court.

After the MSPB Initial Decision: Four Choices or More

After the MSPB Administrative Judge issues an initial decision against the employee the employee has four options to appeal.

  1. Petition for Review by the full MSPB: An appeal to the Board permits the broadest kind of appellate style review. But right now there is only one MSPB member and the Board has no quorum. There are probably 1,500 petitions for review pending in front of the MSPB right now. So expect big delays and likely bad decisions as the Board affirms everything in sight in a desperate bid to catch up on the backlog.
  2. Appeal to the EEOC: If you don't appeal to the MSPB but wait and let the decision become final, you can appeal the EEO claims in the case to the Equal Employment Opportunity Commission's Office of Federal Operations. But the EEOC OFO is also significantly backlogged. Expect more lengthy delays.
  3. Appeal to the CAFC: The Court of Appeals for the Federal Circuit can also hear appeals from final MSPB decisions. Expect the judges to be most attuned to complex legal issues - rather than the basic fairness of the case.
  4. New trial in District Court: Finally, the most aggressive option is to simply start over with a brand new trial in District Court. Depending where you live, your reception in court will vary. Here in Mississippi, you will be taking your chances; some judges are great, and others less so.

Seriatim

To make things still more complex, these aren't either/or options: you can often string them together. The most thorough method is probably to start the case with the EEO process, then, when the ROI is just finishing, request an MSPB appeal, then file a petition for review with the MSPB, then an EEOC appeal, and only then go into federal court for a brand new trial. The case can sometimes take a decade - particular if you win some of those appeals and there are remands along the way.

Getting Help

If you have enough interest in this topic to have read this far, chances are good that you may need the help of an attorney experienced in representing federal employees. There are no easy answers, but at least the attorney can help you understand the consequences of your choices.

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First provide the firm with your name, and the name of the person you are making claims against - and no other information. This allows the firm to check for such conflicts of interest. Until you receive confirmation from an attorney that there is NO CONFLICT, none of the information you provide will be considered confidential. Do NOT provide any confidential information before we have asked you to do so.

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